Brugman v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION. For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Docket #12) should be granted. re: 12 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. Objections to R&R due by 1/24/2017 (Signed by Magistrate Judge Gabriel W. Gorenstein on 1/9/2017) Copies Sent By Chambers to Merle Brugman, 55 West 100th Street, Apt. 9G, New York, NY 10025. Counsel by ECF. (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
MERLE BRUGMAN,
:
Plaintiff,

: REPORT AND RECOMMENDATION

-v.-

: 15 Civ. 7276 (PKC) (GWG)

COMMISSIONER OF SOCIAL SECURITY,

:

Defendant.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Merle Brugman brought this pro se action to review a final decision of the
Commissioner of Social Security denying Brugman supplemental security income and disability
insurance benefits. The Commissioner has moved for judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c).1 Despite being given several opportunities to do so, Brugman has not
made any submissions opposing the motion.
I. BACKGROUND
A. Procedural History
Brugman filed for disability benefits on September 25, 2012. See Administrative
Record, filed Mar. 18, 2016 (Docket # 11) (“R.”), at 103-12. The Social Security Administration
(“SSA”) denied Brugman’s application on November 29, 2012. R. 71-77. Brugman requested a
hearing before an Administrative Law Judge (“ALJ”). R. 79-80. A hearing was held on
December 12, 2013. R. 29-46. In a February 25, 2014, decision, the ALJ found that Brugman

1

See Notice of Motion, filed Mar. 18, 2016 (Docket # 12); Memorandum of Law in
Support of the Commissioner’s Motion for Judgment on the Pleadings, filed Mar. 18, 2016
(Docket # 13) (“Def. Mem.”).
1

was not disabled. R. 25. Brugman requested review of the ALJ’s decision, see R. 12-13, and on
April 10, 2015, the Appeals Council denied that request, making the ALJ’s determination the
Commissioner’s final decision, R. 6-9. Brugman brought this civil action on September 14,
2015, to review that final decision.
B. The Hearing Before the ALJ
At the hearing before the ALJ, Brugman, who was not represented, testified that she
became disabled in November 2011. See R. 34. Brugman had worked for a Macy’s department
store up until that time period. See R. 34-36.2 After leaving her employment with Macy’s,
Brugman looked for a job “working in a shelter or a pantry” until March 2012, while also
receiving unemployment payments. R. 36-37. She earned “a little money” at the end of 2012
working for the City of New York’s Board of Elections. See R. 34-35.
Brugman said she had no history of drug or alcohol abuse, but admitted to using
marijuana in the past. R. 37-38. Brugman testified that she had hammertoe surgery “in the early
90s.” R. 38. At the time of the hearing, Brugman continued to use Tramadol for back and knee
pain. Id. Tramadol produced no side effects, though the efficacy of its pain reduction varied.
Id. Brugman took Lisinopril for hypertension, though she stated it did not control her
hypertension because at “appointments . . . [her] pressure seem[ed] . . . higher than . . . normal.”
See id. Brugman’s doctors had recently prescribed her a higher dose of Lisinopril. See R. 3839.
Brugman took Ventolin for her asthma, which she needed help with “more than ever
now.” R. 39. Brugman’s prescribed asthma medication varied in its ability to control her

2

Documents completed by Brugman show that she worked at a pharmacy from 2004 to
2009 and as a front desk clerk at a YMCA from 1997 to 2001. R. 58, 169.
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asthma-related symptoms. Id. Whereas Brugman at one time could “walk maybe like two
blocks without breathing [problems],” at the time of the hearing she could only “walk a block
[before she had] to stop because [she] need[ed] to [use her asthma] pump.” See id.
Brugman attributed her inability to work to her difficulty in walking, drowsiness induced
by her medications, and her back pain. See R. 39-40. Brugman also said that her asthma limited
her ability to work because “everywhere is crowded, everywhere and stuff like that [makes it]
hard to breathe.” See R. 40. Unrelated to her asthma, Brugman’s “fingers get cramped and
they’ll stay like that.” Id.
As to her back pain, Brugman testified it was “unbearable” and was worst when she bent
or stretched. See id. To alleviate the pain, Brugman took Tramadol and “Tylenol COD number
3.” R. 40-41. Brugman would take three Tylenol per week and they made her “feel relaxed.”
R. 41. Brugman said she could sit for three hours in an eight-hour workday and stand for one
hour. See id. Brugman could not estimate how many pounds she could lift, but stated that she
could lift a gallon of milk. Id. On an average day, Brugman said she would wake up, take her
medication, eat something, and try to walk for exercise. R. 41-42. When she walked for
exercise, she could only walk half a block. R. 42. Brugman said she was “using [her asthma]
pump more than ever now.” See id.
Brugman also testified about a semi-hysterectomy she had on May 17, 2013. R. 43-44.
The reason for her semi-hysterectomy was that Brugman had a pre-cancerous cyst “on the
fibroid.” R. 44-45. This cyst had apparently caused her to have back pain over a two-year
period, resulting in emergency room visits. Id.

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C. Medical Evidence
The medical evidence in the record is described accurately in the Commissioner’s brief.
See Def. Mem. at 4-13. We discuss the evidence relevant to our conclusions in Section III
below.
D. The ALJ’s Decision
The ALJ denied Brugman’s application for benefits in a written decision on February 25,
2014. R. 14-25. The ALJ found that Brugman had a “severe combination of impairments,”
including “asthma, obesity, hypothyroidism, plantar fasciitis, and an unspecified impairment of
the back.” R. 19. Nonetheless, the ALJ found that Brugman did not have an “impairment or
combination of impairments that [met] or medically equal[ed] the severity of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).” R. 19-20. The ALJ noted that none of
Brugman’s physicians had “indicated clinical signs or diagnostic findings that me[t] or [were]
comparable to the severity requirements of a listed impairment.” R. 20.
The ALJ found that Brugman maintained the “residual functional capacity to perform
light work . . . including occasional stooping and occasional exposure to respiratory irritants.”
Id. The ALJ found that Brugman could “stand or walk for six of eight hours in a work day,
frequently lift and carry objects weighing 10 pounds, occasionally lift and carry up to 20 pounds,
push/pull to her lifting/carrying capacity, and balance and ambulate on level surfaces without an
assistive device.” Id. The ALJ explained this conclusion through an extensive review of
Brugman’s medical history (discussed further below). R. 20-24.
In light of the finding regarding her residual functional capacity, the ALJ found that
Brugman was “capable of performing her past relevant work as a sales attendant, store cashier,

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and hotel clerk.” See R. 24-25. Thus, the ALJ found that Brugman was not under a disability, as
defined by the Social Security Act, from November 22, 2011, to the date of the decision. R. 25.
II. GOVERNING LAW
A. Scope of Judicial Review Under 42 U.S.C. §§ 405(g) and 1383(c)
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); accord Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v. Carter, 221 F.3d 126, 131 (2d Cir.
2000)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive . . . .”); id. § 1383(c)(3) (“The
final determination of the Commissioner of Social Security . . . shall be subject to judicial review
as provided in section 405(g) . . . .”). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Selian, 708 F.3d at
417; Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam)
(quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (internal quotation marks omitted) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d
Cir. 1982)). Thus, “[i]f the reviewing court finds substantial evidence to support the

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Commissioner’s final decision, that decision must be upheld, even if substantial evidence
supporting the claimant’s position also exists.” Johnson v. Astrue, 563 F. Supp. 2d 444, 454
(S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); accord McIntyre
v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”) (citing Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)). The Second Circuit has characterized the
“substantial evidence” standard as “a very deferential standard of review — even more so than
the ‘clearly erroneous’ standard.” Brault, 683 F.3d at 447-48 (citing Dickinson v. Zurko, 527
U.S. 150, 153 (1999)). “The substantial evidence standard means once an ALJ finds facts, [a
court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.”
Id. at 448 (emphasis in original) (internal quotation marks omitted) (quoting Warren v. Shalala,
29 F.3d 1287, 1290 (8th Cir. 1994)). “The role of the reviewing court is therefore quite limited
and substantial deference is to be afforded the Commissioner’s decision.” Johnson, 563 F. Supp.
2d at 454 (internal quotation marks omitted) (quoting Hernandez v. Barnhart, 2007 WL
2710388, at *7 (S.D.N.Y. Sept. 18, 2007)).
B. Standard Governing Evaluation of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “inability 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); accord id.
§ 1382c(a)(3)(A). A person will be found to be disabled only if it is determined that his
“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

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of substantial gainful work which exists in the national economy.” Id. §§ 423(d)(2)(A),
1382c(a)(3)(B).
To evaluate a claim of disability, the Commissioner is required to examine: “(1) the
objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s
educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam) (citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Parker v.
Harris, 626 F.2d 225, 231 (2d Cir. 1980); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); and
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978)); accord Brown v. Apfel, 174 F.3d 59, 62
(2d Cir. 1999) (per curiam); Wilson v. Colvin, 107 F. Supp. 3d 387, 400 (S.D.N.Y. 2015).
Regulations issued pursuant to the Social Security Act set forth a five-step process that
the Commissioner must use in evaluating a disability claim. See 20 C.F.R. § 404.1520(a)(4); see
also Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003)) (describing the five-step process). First, the Commissioner must determine whether the
claimant is currently engaged in any “substantial gainful activity.” 20 C.F.R.
§ 404.1520(a)(4)(I). Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner must decide if the claimant has a “severe medically determinable physical or
mental impairment,” id. § 404.1520(a)(4)(ii), which is an impairment or combination of
impairments that “significantly limits [the claimant’s] physical or mental ability to do basic work
activities,” id. § 404.1520(c). Third, if the claimant’s impairment is severe and “meets or
equals” one of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1, and “meets the duration
requirement,” the claimant must be found disabled. Id. § 404.1520(a)(4)(iii). Fourth, if the
claimant’s impairment does not meet or equal one of the listed impairments, or does not meet the

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duration requirement, the Commissioner must review the claimant’s residual functional capacity
to determine if the claimant is able to do the work he or she has done in the past, i.e., “past
relevant work.” Id. § 404.1520(a)(4)(iv). If the claimant is able to do such work, he or she is not
disabled. Id. Finally, if the claimant is unable to perform past relevant work, the Commissioner
must decide if the claimant’s residual functional capacity, in addition to his or her age,
education, and work experience, permit the claimant to do other work. Id. § 404.1520(a)(4)(v).
If the claimant cannot perform other work, he or she will be deemed disabled. Id. The claimant
bears the burden of proof on all of these steps except the final one — that is, proving that there is
other work the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
(per curiam).
C. The “Treating Physician” Rule
In general, the ALJ must give “more weight to opinions” of a claimant’s treating
physician when determining if the claimant is disabled. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); see also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (the
ALJ must give “a measure of deference to the medical opinion of a claimant’s treating
physician”). Treating physicians “may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
An ALJ must accord “controlling weight” to a treating physician’s medical opinion as to the
nature and severity of a claimant’s impairments if the opinion “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.” Id. §§ 404.1527(c)(2), 416.927(c)(2).
Inversely, the opinions of a treating physician “need not be given controlling weight where they

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are contradicted by other substantial evidence in the record.” Veino v. Barnhart, 312 F.3d 578,
588 (2d Cir. 2002) (citations omitted); accord Selian, 708 F.3d at 418 (“The opinion of a treating
physician on the nature or severity of a claimant’s impairments is binding if it is supported by
medical evidence and not contradicted by substantial evidence in the record.”) (citing Burgess,
537 F.3d at 128; and Green-Younger, 335 F.3d at 106-07).
D. Credibility Determinations
“It is the function of the [Commissioner], not [the reviewing court], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.”
Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Perales,
402 U.S. at 399; McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 705 (2d Cir.
1980); and Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). Thus, the ALJ, “after weighing
objective medical evidence, the claimant’s demeanor, and other indicia of credibility . . . may
decide to discredit the claimant’s subjective estimation of the degree of impairment.” Tejada v.
Apfel, 167 F.3d 770, 776 (2d Cir. 1999) (summarizing and citing with approval a holding in
Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985)). Nonetheless, when
discounting a claimant’s credibility regarding her residual functional capacity, regulations
impose some burden on the ALJ to explain her decision. As the Second Circuit has stated:
When determining a claimant’s [residual functional capacity], the ALJ is required
to take the claimant’s reports of pain and other limitations into account, 20 C.F.R.
§ 416.929; see McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701,
704-05 (2d Cir. 1980), but is not required to accept the claimant’s subjective
complaints without question; he may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other evidence in the record.
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
Genier, 606 F.3d at 49.
The SSA has issued regulations relating to reports of pain or other symptoms affecting

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the ability to work by a claimant for disability benefits. 20 C.F.R. §§ 404.1529(c), 416.929(c).
These regulations provide, inter alia, that the SSA “will not reject [a claimant’s] statements
about the intensity and persistence of [her] pain or other symptoms or about the effect [her]
symptoms have on [her] ability to work solely because the available objective medical evidence
does not substantiate [her] statements.” Id. § 404.1529(c)(2); accord id. § 416.929(c)(2). The
regulations also provide that the SSA “will consider whether there are any inconsistencies in the
evidence and the extent to which there are any conflicts between [a claimant’s] statements and
the rest of the evidence.” Id. §§ 404.1529(c)(4), 416.929(c)(4).
Where an ALJ rejects witness testimony as not credible, the basis for the finding
“must . . . be set forth with sufficient specificity to permit intelligible plenary review of the
record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citing
Carroll, 705 F.2d at 643); see also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). The ALJ
must make this determination “in light of medical findings and other evidence[] regarding the
true extent of the pain alleged by the claimant.” Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.
1984) (internal quotation marks omitted) (quoting McLaughlin, 612 F.2d at 705). However,
where an ALJ gives specific reasons for finding the claimant not credible, the ALJ’s credibility
determination “is generally entitled to deference on appeal.” Selian, 708 F.3d at 420 (citing
Calabrese v. Astrue, 358 F. App’x 274, 277 (2d Cir. 2009) (summary order)). Thus, “[i]f the
[Commissioner’s] findings are supported by substantial evidence, the court must uphold the
ALJ’s decision to discount a claimant’s subjective complaints.” Aponte v. Sec’y, Dep’t of
Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citations omitted); see also 42 U.S.C.
§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”).

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III. DISCUSSION
While Brugman made no response to the Commissioner’s motion, we have examined the
record and find that the decision was supported by substantial evidence.
As the ALJ noted, R. 21, Brugman had sought treatment at St. Luke’s Hospital for right
foot pain prior to her November 22, 2011, onset date, see R. 279-82. Brugman visited St. Luke’s
on August 9, 2011, complaining of moderate foot pain that was “aggravated by movement,
pressure, standing and walking.” R. 279. Examination of the foot showed tenderness as well as
some erythema (or redness). R. 280. A neurological exam found that Brugman’s gait was
normal. R. 281. The physician’s diagnosis was plantar fasciitis.3 Id. A doctor prescribed
Motrin and fifteen tablets of acetaminophen with codeine, but stated Brugman could “return to
work without restrictions” in two days. R. 281-82.
Brugman went to St. Luke’s on April 20, 2012, after falling out of a bus and landing on
her right chest, right knee, and right arm. R. 274. No fracture was definitively found. R. 277.
St. Luke’s instructed Brugman to monitor the pain and return for follow-up x-rays if the pain
became intolerable. Id. Brugman received a prescription for 15 Percocet tablets for pain. Id. A
neurological examination found no weakness nor abnormal gait and a respiratory examination
found no coughing. See R. 274. Despite noting a history of asthma, the treating notes found
Brugman’s lungs “[c]lear to auscultation,” with no wheezing. R. 275-76. Also, while noting a
history of hypertension, a cardiovascular examination found a “[r]egular rate and rhythm.” See
id. The treating physician noted “elevated blood pressure/hypertension,” but also mentioned that
Brugman had not taken her medication that day. R. 277. The lack of any objective finding of

3

Plantar fasciitis is the “inflammation of the plantar fascia [tissue of the sole of the foot]
causing foot or heel pain.” Steadman’s Medical Dictionary 647, 649, 652, 1392 (27th ed. 2000)
(“Steadman’s”).
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injury from the bus fall and the fact that Brugman was “cleared to return to work without any
restrictions,” was accurately recounted in the ALJ’s decision. R. 21, 24; see R. 278.
The ALJ also correctly described Brugman’s treatment at the Ryan Community Health
Center (“Ryan Center”). See R. 21-24. Brugman went to the Ryan Center on March 29, 2012,
for prescription refills. R. 364-65. She said she felt well and denied shortness of breath. See
R. 364. She reported her pain level as a “0,” her blood pressure was 131/90, and an examination
of Brugman’s lungs showed no problems. Id. Brugman returned on April 24, 2012,
complaining of upper right body pain after her fall from the bus. See R. 366. Brugman claimed
that the doctors at St. Luke’s told her she had a right side rib fracture, see id., although no such
fracture had been definitively found, R. 277, and also claimed that Oxycontin helped with the
pain while other prescriptions would not, R. 366. An examination of Brugman showed no
shortness of breath, a good general state of health, and good exercise tolerance. Id. Brugman
claimed a “10” on the pain scale and had a blood pressure of 165/99. Id. In response to
Brugman’s pain, the treating physician prescribed her 10 milligrams of oxycodone, to be taken
every six hours. See R. 367. Brugman returned on May 22, 2012, seeking a refill and an
increased dosage. R. 368. Rather than refill the prescription, the doctor at the Ryan Center
prescribed Naproxen. R. 368-69.4 Brugman claimed her pain was “marginally better and
denie[d shortness of breath].” R. 368. An examination of Brugman’s lungs led to unremarkable
findings. See id.
Brugman went to the Ryan Center again on June 8, 2012, complaining of lower leg pain,
but no back, rib, or breathing problems. See R. 370-71. Brugman again denied shortness of

4

Naproxen is a “nonsteroidal anti-inflammatory analgesic agent.” Steadman’s, supra, at
1182. Oxycodone is a “narcotic analgesic.” Id. at 1293.
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breath and only complained of left lower leg pain, which she described as a “6” on the pain
scale. R. 370. The physician assessed Brugman’s leg as having a hematoma and contusion.
R. 371.
Brugman returned to the Ryan Center on June 19, June 21, September 11, October 12,
and October 16, 2012. R. 372-84. Brugman did not complain of shortness of breath at any of
her visits and her respiratory examinations showed no problems. See id. At the June 21, 2012,
visit, Brugman complained of extreme lower back pain. R. 374. The treating physician found
Brugman’s “history” of her rib injury “[in]consistent” and noted that she was asking for “pain
killers.” Id. Brugman claimed her pain was a “7”on the pain scale, but the physician’s notes
said that she appeared well. R. 375. Brugman was diagnosed with chronic pain and prescribed
Tramadol. See id. The notes mentioned that Brugman exhibited possible “drug seeking
behavior” and the physician refused to prescribe her any further opioids. Id. Brugman returned
on October 12, 2012, because of her back pain, and sought a refill for her Tramadol prescription.
R. 379. An examination found Brugman to be in a “good general state of health,” and found
only “[m]ild tenderness to palpation on the [r]ight lower [r]ibs.” R. 379-80. On November 4,
2013, the Ryan Center referred Brugman to St. Luke’s for physical therapy related to her back
pain, but made no diagnosis as to the severity or limitations of that pain. See R. 401-03.
In reviewing the “contemporaneous treating notes” of the physicians at the Ryan Center,
the ALJ found that they indicated that “despite [Brugman’s] symptom complaints, she routinely
present[ed] with unremarkable findings and has not required more than conservative pain
management for any of her impairments.” R. 24. There is substantial evidence in the record for
this conclusion. First, as relates to Brugman’s complaints of asthma-related disability, while the
Ryan Center notes frequently mention that she had “mild intermittent” asthma, R. 362, 364, 366,

13

368, 370, 372, 374, 377, 379, 382, Brugman did not complain of shortness of breath and
exhibited no respiratory problems on any examination, see R. 364, 366-67, 368, 370, 375, 37980. Similarly, though Brugman visited the Ryan Center for problems with pain in her ribs and
back, at no time did the Ryan Center physicians find that Brugman’s pain inhibited her ability to
work. See R. 364-84. Indeed, as Brugman’s complaints of pain continued, her doctor’s
prescription strength decreased, as they feared that she was exhibiting “drug seeking behavior.”
See R. 375. The doctors at the Ryan Center refused to give her opioid pain killers. See R. 36869, 375. Thus, the ALJ’s decision was consistent with Brugman’s treatment notes and with the
“treating physician rule” in finding no debilitating effects of asthma and no functional
limitations from pain.
Brugman’s Harlem Hospital Center treatment records are consistent with the ALJ’s
findings. Notes from a February 6, 2012, visit state that, while Brugman complained of back
pain, a review of Brugman’s past “CTs, Sonograms, and MRIs” showed “no clear cause of
pain.” R. 299-300. Brugman next presented to Harlem Hospital on May 3, 2012, complaining
of pain due to a “fractured rib” which she sustained in April 2012. R. 294. This appears to refer
to the fall from the bus for which Brugman had previously obtained pain medication just days
before from St. Luke’s and the Ryan Center. See R. 274, 277, 366-67. As already noted,
doctors could not determine that Brugman had sustained a fractured rib in the bus incident. See
R. 277. A June 14, 2012, visit similarly reflected complaints of rib pain, though Brugman stated
she had not been taking her pain medication. R. 286. The ALJ was thus correct in describing
Brugman’s May 3, 2012, visit to Harlem Hospital as evidencing “normal physical examination
findings except for tenderness in the rib cage.” R. 22. The ALJ also correctly described the June
14, 2012, visit as indicating only bruising and noted that Brugman was discharged with only a

14

prescription for Motrin. See id.
With respect to Brugman’s back or rib pain, the ALJ correctly noted that, despite
Brugman’s complaints of back pain or rib pain, the “diagnostic studies [were] unremarkable and
the only consistent clinical finding in the record [was] tenderness to palpation.” R. 23. The ALJ
also noted that Brugman’s pain symptoms had been treated conservatively with Naproxen or
Tramadol, other than a brief period of oxycodone prescriptions which doctors later terminated.
See id.; see also R. 368, 375. Further, Brugman’s self-described activities of daily life, R. 16062, indicated that she was capable of self-care and could walk, shop, cook, do laundry, and
socialize at church and the movies, R. 23 (citing R. 160-62). These statements could properly be
seen as inconsistent with Brugman’s testimony at the hearing that she could only walk half a
block. See R. 42. The ALJ also noted that Brugman was seeking employment between
December 2011 and March 2012. R. 23-24. The ALJ noted that this fact weighed on Brugman’s
credibility as to being disabled since November 2011. R. 24. Finally, the ALJ recognized that
Brugman’s arriving at both the consultative examination and the ALJ hearing without a cane
undercut Brugman’s allegations of impairment necessitating the use of a cane. Id.
As for her asthma, the record contains substantial evidence to support the ALJ’s decision
that Brugman was not disabled due to this condition, R. 20-21, 23, as she consistently denied
having shortness of breath at nearly every doctor’s visit, and examinations of her lungs showed
nothing abnormal, R. 294-95, 297-98, 364, 366-67, 368, 370, 375, 379-80. Despite Brugman’s
claims that she could barely walk a block due to her asthma, R. 39, her treating physicians
consistently found that her asthma was “mild” and “intermittent,” and her lungs clear, see R.
294, 300, 362, 364, 366-67, 368, 370, 372, 374-75, 377, 379-80, 382. The ALJ properly
considered this in determining that Brugman’s complaints of asthma-related limitations were not

15

credible. R. 23.
While Brugman testified that her medication made her tired, R. 39, we have not found
any indication in the records of her treatment that Brugman made any such complaint and,
indeed, she denied being fatigued on several occasions, see, e.g., R. 221, 274, 348. After the
ALJ’s decision, Brugman supplied the Commissioner a report from a social services agency,
FEGS, in which Brugman complained of being tired, feeling depressed, having little interest in
doing things, and having little energy. R. 404-05, 412.5 However, this report appears to be
generated based entirely on Brugman’s subjective complaints. R. 412-13. Notably, in another
document, Brugman reported that she liked to “walk in Central Park . . . for exercise” and would
walk from her home on 100th Street, R. 33, “to 110th Street and back,” R. 167.
Brugman was referred to Dr. Shannon Gearhart for a consultative examination on
November 14, 2012. R. 385. Dr. Gearhart noted Brugman’s high blood pressure, but stated that
she was in “no acute distress.” R. 387. At the examination, Brugman’s gait was “mildly
antalgic,”6 but she could walk on her “heels without difficulty.” Id. While Brugman arrived at
the examination without a cane, Dr. Gearhart opined that a cane was “medically necessary” in
light of Brugman’s “mildly abnormal unassisted gait.” Id. Dr. Gearhart’s examination of
Brugman’s lungs found them “[c]lear to auscultation,” with no abnormal findings. See id.
Brugman’s neurologic examination found her with five-out-of-five strength in her upper and
lower extremities. R. 388. Brugman’s hand and finger dexterity were “intact” and her grip
strength was five-out-of-five. Id.
5

FEGS refers to the Federation Employment and Guidance Service, a “nonprofit health
and human services organization.” See Mora v. Comm’r of Soc. Sec., 2015 WL 4139341, at *6
(E.D.N.Y. July 8, 2015).
6

Antalgic means “[c]haracterized by reduced response to painful stimuli.” Steadman’s,
supra, at 67, 94.
16

Dr. Gearhart found only “mild to moderate restrictions for heavy lifting, carrying,
pushing, and pulling” and “mild to moderate restrictions for squatting, kneeling, climbing, going
up and down stairs, and prolonged walking, standing, and sitting.” R. 389. Dr. Gearhart also
recommended “avoid[ing] smoke, dust, and other known respiratory irritants.” Id. The ALJ
gave these findings considerable weight. See R. 24. Further, a lumbosacral spine x-ray found no
abnormality, R. 391, and a left knee x-ray showed only mild degenerative joint disease and mild
joint space narrowing, R. 392.
In declining to accept Dr. Gearhart’s opinion that Brugman required a cane, the ALJ
relied on the fact that no treating physicians had ever prescribed a cane. See R. 24. As the ALJ
noted, “there is no medical evidence in the treating record documenting the need for a hand-held
assistive device to aid the claimant in walking.” Id. Indeed, neither Dr. Gearhart nor the ALJ
saw Brugman use the cane, and Brugman consistently failed to actually use it. See R. 20, 24, 42,
387. In the “Function Reports,” which Brugman and her mother filled out, neither mentioned
that Brugman needed a cane. R. 163, 185. A June 10, 2014, third-party Function Report
similarly failed to list that Brugman used a cane. R. 211. Thus, the ALJ could properly
conclude that Brugman did not require a cane.
In light of the evidence in the record, the ALJ could also properly determine that
Brugman’s testimony regarding her pain and other limitations was not credible, and that she had
the functional capacity to perform light work, which included only occasional stooping and
occasional exposure to respiratory irritants. R. 20. No treating physician listed limitations in
Brugman’s daily activities and on several occasions, after she complained of pain or other
symptoms, doctors released Brugman with no or minor work-related restrictions. See R. 278,
389; see also R. 281-82. Whereas Dr. Gearhart’s analysis partly contradicted the ALJ’s finding

17

that Brugman could “balance and ambulate on level surfaces without an assistive device,” see
R. 20, 387, as discussed above there was ample treating-physician evidence that supported the
finding that Brugman did not require a cane to walk.
Substantial evidence thus supported the ALJ’s finding that Brugman could “stand or walk
for six of eight hours in a work day, frequently lift and carry objects weighing 10 pounds,
occasionally lift and carry up to 20 pounds, push/pull to her lifting/carrying capacity, and
balance and ambulate on level surfaces without an assistive device.” R. 20.
Relying on the Dictionary of Occupational Titles, the ALJ found that Brugman could
perform her past work as a sales attendant, pharmacy technician, cashier, and hotel clerk. R. 25.
All four positions require only light exertion, occasional or no stooping, and minimal lifting.7 In
particular, hotel clerk requires no stooping, kneeling, crouching, balancing, or climbing.
Dictionary of Occupational Titles, Code 238.367-038, 1991 WL 672211. Given the lack of any
documented limitations in the medical record, the ALJ’s findings were supported by substantial
evidence.8

7

See Dictionary of Occupational Titles, Code 074.382-010, 1991 WL 646728 (Pharmacy
Technician); Dictionary of Occupational Titles, Code 211.462-010, 1991 WL 671840 (Cashier
II); Dictionary of Occupational Titles, Code 238.367-038, 1991 WL 672211 (Hotel Clerk);
Dictionary of Occupational Titles, Code 299.677-010, 1991 WL 672643 (Sales Attendant).
8

We have also examined whether the Commissioner complied with her duty to develop
the record. See 42 U.S.C. § 423(d)(5)(B). We note that there is a document indicating that
Brugman visited St. Luke’s Ambulatory Care unit in February 2013 complaining of severe back
pain and that she was referred for an MRI. See R. 395, 398-99. There are no additional records.
Brugman did not identify this specific visit at the hearing, but it is reasonably likely that this visit
was one of the emergency room visits Brugman testified to that preceded her partial
hysterectomy. See R. 44-45 (Brugman testified she made emergency room visits for back pain
for two years, that she was referred for an MRI and CT scan, and that the problem turned out to
be a cyst requiring a hysterectomy, which was performed in May 2013). Accordingly, we do not
believe the ALJ failed to discharge her duty to develop the record with respect to this visit.
18