Brush v. Carolyn W. Colvin
Filing
23
OPINION AND ORDER re: 21 MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 17 FIRST MOTION for Judgment on the Pleadings . filed by Rebecca Jane Brush. The Commissioner's motion for judgment on the p leadings (Docket# 22) is granted and Brush's motion for judgment on the pleadings (Docket# 16) is denied. The clerk is requested to enter judgment and to close the case. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/26/18) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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REBECCA JANE BRUSH,
:
Plaintiff,
-v.-
:
OPINION AND ORDER
:
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
:
16 Civ. 8273 (GWG)
:
Defendant.
:
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GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Rebecca J. Brush brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her claim for
disability benefits under the Social Security Act. Both parties have moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c).1 For the reasons stated below, the
Commissioner’s motion is granted and Brush’s motion is denied.
I. BACKGROUND
A. Procedural History
On March 12, 2012, Brush applied for disability and disability insurance benefits under
Sections 216(i) and 233(d) of the Social Security Act for allegedly disabling injuries to her back
and neck, as well as severe anxiety and depression. See Certified Administrative Record, filed
Apr. 25, 2017 (Docket # 13) (“R.”), at 17, 167, 331-34. The Social Security Administration
1
Notice of Motion for Judgment on the Pleadings, filed July 17, 2017 (Docket # 17);
Plaintiff’s Memorandum of Law in Support of Her Motion for Judgment on the Pleadings, filed
July 17, 2017 (Docket # 18) (“Pl. Mem.”); Notice of Motion, filed Sept. 15, 2017 (Docket # 21);
Memorandum of Law in Support of Defendant’s Motion for Judgment on the Pleadings and in
Opposition to the Plaintiff’s Motion for Judgment on the Pleadings, filed Sept. 15, 2017 (Docket
# 22) (“Comm’r Mem.”).
(“SSA”) denied Brush’s application on July 12, 2012. R. 167, 196-207. She requested a review
of the SSA’s decision by an Administrative Law Judge (“ALJ”), R. 208-09, and hearings were
held on June 14, and September 20, 2013, see R. 46-72, 73-104. In a written decision dated
November 25, 2013, the ALJ found that Brush was not disabled. R. 168-89.
Brush appealed the decision to the Appeals Council, which remanded the case on May
13, 2015, for rehearing before the ALJ. R. 190-93. The Appeals Council instructed the ALJ to
update the medical record, reassess Brush’s maximum residual functional capacity during “the
entire period at issue,” and obtain additional evidence from a vocational expert. Id. On
December 4, 2015, a supplemental hearing was held before the same ALJ. R. 105-60. In a
written decision dated March 14, 2016, the ALJ again found Brush not disabled. R. 14-36.
Brush requested review by the Appeals Council, which denied her request on August 25, 2016.
R. 1-4. This action followed.
B. Hearings Before the ALJ
Brush was represented by attorney John Lindholm at the June 14, and September 20,
2013 hearings before the ALJ, R. 48, 75, and by attorney Scott Goldstein at the December 4,
2015 hearing, R. 107.
Brush injured her neck and back while she was working as a custodian for a school
district where she had held various jobs for about twelve years. See R. 52-53, 117-19. On the
date of the incident, June 21, 2011, a dolly she was using slipped and she awkwardly moved her
body while trying to catch it. R. 432. She was 38 at the time of the accident. See R. 50, 182.
Brush said that after the accident she had chronic neck and lower back pain with weakness in
both arms and frequent numbness in her fingers causing her to “drop mugs constantly.” R. 133,
135. The numbness in her fingers was “really frustrating,” because it limited her ability to enjoy
2
her hobbies, R. 61-62, while the weakness in her arms made lifting objects “difficult” and she
could not lift more than “a gallon of water.” R. 138. In addition to upper body issues, she also
lost sensation in her right leg and could not sit for more than a half-hour at a time or walk for
more than 15 to 20 minutes without rest. R. 136-37. As a result, she started to use a cane while
walking outside. R. 64, 137. Additionally, because of the numbness in her right leg and
unpredictable back spasms, she also worried about falling. R. 67. In fact, she claimed to have
“fallen in [her] home four times because of [the spasms]” and, out of an abundance of caution,
installed a shower bar. R. 55-56, 67.
The accident also aggravated her anxiety and depression, making it “100 times worse,”
R. 121, and she began to experience panic attacks “probably about once a week,” R. 139. She
relied on her partner to avoid more frequent panic attacks and generally avoided “go[ing] into
stores by [her]self.” R. 139-40. Her pain also reduced her ability to concentrate, making her
“thoughts just wander” when she tried to read. R. 140.
With regard to her daily activities, Brush testified that she started her days by lying for
“about an hour” on a heating pad, and then would repeat this practice in the afternoon and
evening. R. 66. It usually would “take[] [her] several hours to get ready.” R. 137. Most days,
she would stay at home with her partner, who was also disabled, and watch movies and
television, “sitting for probably 15 to 20 minutes” at a time and frequently changing positions.
R. 64, 67, 138. She would also go on walks “every now and then, outside.” R. 64. When not
otherwise occupied, she performed “light” household chores, such as cleaning the kitchen and
laundry, and reported that she “just ha[s] to be careful how [she] do[es] things.” R. 65-66.
Being careful reportedly included employing a back brace when cleaning to minimize pain and
lying on her heating pad after completing a chore to treat the resulting pain. Id.
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She would also leave the house “several times a week” to attend doctors’ appointments,
physical therapy, and to make “small trips to the grocery store” and the post office. R. 137; see
also R. 56. She testified that she drove, but frequently pulled to the side of the road because she
would “get dizzy and panicky.” R. 54, 65. She was usually accompanied by her partner on these
trips and testified that “if it was just myself, I would probably hardly ever leave the house.” R.
65, 67. At the time of her first hearing in 2013, she was not a member of any social
organizations, houses of worship, or any other similar organization. R. 67. She also reported
losing her friends and hobbies as a result of the injury and, as an example, noted that she would
miss her sister’s wedding the following day because she was “not even up to attending [it].” R.
81, 140. While she vacationed with her parents every summer on Cape Cod, “it was pretty
difficult because of my sleeping patterns, just everything.” R. 81.
Following her injury, Brush reported that she was initially prescribed Tramodol and
Motrin, but was later transitioned to Oxycodone (which reportedly “help[ed] with the pain . . .
[but was] exhausting”) and Advil. R. 55, 129-30. She also continued to take anti-anxiety
medications, which her psychiatrist increased in the period following her injury, and was
prescribed an antidepressant. R. 79-80, 119-21. In 2012, she underwent an anterior cervical
discectomy and fusion, but felt “that [she] got worse. Because the pain in [her] back []
increased.” R. 55. She also reported falling twice after the surgery, as a result of back spasms.
R. 56. She subsequently explained, however, that in the six months after the surgery, the
numbness in her fingers had, for the most part, “gotten better.” R. 61.
At the third hearing, the ALJ called a vocational expert (“VE”) as a witness. R. 147.
Brush had testified that her past work as a custodian involved “mop[ping] the halls [and] large
bathrooms[,] . . . clean[ing] after functions,” R. 52, and “empty[ing] wastepaper baskets,” R.
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149. Based on this testimony, the VE classified Brush’s past work as a custodian as “heavy
work” and “unskilled.” Id.
The ALJ then asked the VE to consider a person of the plaintiff’s age, education, and
work history, who could perform sedentary work, but who could only occasionally push, pull
and crouch; must employ a cane to ambulate; could frequently flex, extend, and rotate the neck,
and handle and finger objects; could understand, remember, and execute simple work and adapt
to routine work place changes; and could occasionally interact with supervisors, coworkers and
the general public. R. 150. The VE testified that such a person could perform the jobs of
document preparer, stem mounter, addresser, and final assembler, all of which existed in
significant numbers in the economy. R. 150-51. Upon clarification by the ALJ that the
hypothetical individual could frequently move her neck, including but not requiring holding the
neck in a “flexed position” for most of the work day, the VE confirmed that such a person could
still perform those jobs. R. 153-54. The VE acknowledged that while the Dictionary of
Occupational Titles does not address neck movement, based on the VE’s own experience he
believed that an individual “limited to being only able to flex, rotate, or extend the neck on only
an occasional basis” could still perform such jobs. R. 155. But if the hypothetical person “can’t
keep their head in a flexed position downward” on at least an occasional basis, it would “make it
difficult” to perform such jobs. R. 156. Last, in response to questioning by Brush’s attorney, the
VE testified that if the hypothetical person could sit, stand, and walk for only two hours each out
of an eight-hour day, could do each for only 15 minutes at a time, and could lift only up to ten
5
pounds occasionally, then there would be no jobs available at a significant level in the economy.
R. 157.
C. Medical Evidence
Both Brush and the Commissioner have provided summaries of the medical evidence
contained in the administrative record. See Pl. Mem. at 5-7; Comm’r Mem. at 4-21. The
summaries are substantially consistent with each other. The Court had directed the parties to
specify any objections they had to the opposing party’s summary of the record, see Scheduling
Order, filed Apr. 27, 2017 (Docket # 14), ¶ 5, and neither party has done so. Accordingly, the
Court adopts Brush’s and the Commissioner’s summaries of the medical evidence as accurate
and complete for purposes of the issues raised in this suit. We discuss the medical evidence
pertinent to the adjudication of this case in section III below.
D. The ALJ’s Decision
The ALJ denied Brush’s application for disability benefits on March 14, 2016. R. 14.
Following the five-step test set forth in SSA regulations, the ALJ found at step one that Brush
had not engaged in “substantial gainful activity” since her alleged disabling injury on June 21,
2011. R. 19. At step two, the ALJ found that Brush had the following “severe impairments”:
adjustment disorder, depression, anxiety, panic attacks, status post anterior cervical discectomy
and fusion operation, chronic pain syndrome, lumbago, and cervical, thoracic, and lumbar pain
syndrome. Id.
At step three, the ALJ concluded that none of Brush’s severe impairments singly or in
combination met or medically equaled an impairment listed in 20 C.F.R. part 404, subpart p,
appendix 1. R. 20. The ALJ gave “special consideration . . . to Listing 1.04 Disorders of the
spine,” see 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04 (“Listing § 1.04”), but concluded that Brush
6
did not meet or equal the listing because there was “no evidence in the record of motor loss
accompanied by sensory or reflex loss,” “spinal arachnoiditis,” or “spinal stenosis with
pseudoclaudication,” and Brush “retain[ed] the ability to ambulate effectively.” R. 20.
The ALJ also considered whether Brush’s mental impairments “considered singly and in
combination” met Listings 12.04, Affective disorders, or 12.06 Anxiety-related disorders, see 20
C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04, 12.06 (“Listing § 12.04” and “Listing § 12.06”).
R. 20.2 The ALJ found that Brush did not meet any of the “paragraph B” criteria for Listing
§§ 12.04 and 12.06. R. 20-21. In her activities of daily living, the ALJ noted that Brush’s pain
and resultant loss of concentration “do not prevent her from living independently, driving,
2
To meet Listing §§ 12.04 or 12.06, an SSA applicant must meet the “paragraph B” or
“paragraph C” criteria for each listing. For paragraph B, an applicant must meet two of the
following criteria:
[m]arked restriction of activities of daily living; or [m]arked difficulties in
maintaining social functioning; or [m]arked difficulties in maintaining
concentration, persistence, or pace; or [r]epeated episodes of decompensation,
each of extended duration.
20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04(B), 12.06(B). Marked “means more than moderate
but less than extreme,” or “such as to interfere seriously with your ability to function
independently, appropriately, effectively, and on a sustained basis.” Id. § 12.00(C). Episodes of
decompensation are “exacerbations or temporary increases in symptoms or signs accompanied
by a loss of adaptive functioning,” manifested by difficulties with the first three categories. Id.
The SSA modified Listing §§ 12.04 and 12.06 in 2016, but the modifications did not go
into effect until January 2017 and the implementing regulations state that the SSA will “apply
them to new applications filed on or after the effective date of the rules, and to claims that are
pending on or after the effective date.” See Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66,138, 66,138 (Sept. 26, 2016) (to be codified at 20 C.F.R. pt. 404).
The notice states that the SSA “expect[s] that Federal courts will review our final decisions using
the rules that were in effect at the time we issued the decisions.” Id. at 66,138 n.1. Because
Brush applied in 2012 and had her claim decided in 2016, R. 1-4, 167, the modifications do not
apply to her case notwithstanding plaintiff’s reliance on the modified version in her brief, see Pl.
Mem. at 15.
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shopping, cooking, cleaning, attending parties, going on family vacations, and applying for
‘hundreds’ of jobs as required by the State of New York,” and the ALJ therefore found that she
has only a mild restriction in activities of daily living. R. 20. While recognizing that her anxiety
and depression caused interference with her relationships, the ALJ found that Brush was still
able to “participate in celebrations, function[] appropriately in the clinical setting, ha[ve] a longterm relationship with her domestic partner, and attend[] family gatherings.” Id. Thus, the ALJ
concluded that Brush experienced only “moderate difficulties” in social functioning. Id. As for
her claim that she had difficulties with concentration, persistence, or pace, the ALJ credited
Brush’s claim that her chronic pain interferes with her concentration, but concluded these
difficulties were less than marked because she “report[ed] watching television, reading, and
applying for multiple jobs,” engaging in hobbies, and managing her own funds and condo.
R. 20-21. Finally, the ALJ found no evidence of decompensation of an extended duration. R.
21. Because Brush exhibited no “marked” limitations or any episodes of decompensation, she
did not satisfy the paragraph B criteria. R. 20-21.3
3
The ALJ also found that Brush failed to satisfy the “paragraph C” criteria for Listing
§§ 12.04 and 12.06. See R. 21. The paragraph C criteria require the following:
[for § 12.04: A] [m]edically documented history of a chronic affective disorder of
at least 2 years’ duration that has caused more than a minimal limitation of ability
to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following: 1. [r]epeated
episodes of decompensation, each of extended duration; or 2. [a] residual disease
process that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be predicted to
cause the individual to decompensate; or 3. a [c]urrent history of 1 or more years’
inability to function outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement. [And for 12.06:] [Anxiety
r]esulting in complete inability to function independently outside the area of one’s
home.
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Having found that Brush could not meet Listing §§ 1.04, 12.04, or 12.06, the ALJ next
assessed Brush’s residual functional capacity (“RFC”). R. 21. The ALJ found that Brush could
perform sedentary work as defined in 20 CFR 404.1567(a) except can only
occasionally push and pull; must ambulate with an assistive device; can handle
and finger frequently bilaterally; can frequently flex, extend, and rotate the neck;
can constantly hold the neck in one position including the flexion position; can
occasionally crouch and stoop; can understand, remember, and carry out simple
work; adapt to routine workplace changes; occasionally interact with supervisor,
co-workers, and the public; and cannot work at unprotected heights.
Id. As for her physical impairments, the ALJ credited Brush’s claim of back and neck
impairments caused by her June 2011 fall, but found that the available neurological findings and
other objective medical tests did not support her subjective claims as to the degree of resulting
impairment or the persistence of the pain. R. 22-25. For instance, the ALJ noted that despite her
claims of numbness, neurological diagnostic tests were repeatedly negative and she exhibited no
signs of sensory or reflex deficits. Id. Additionally, while MRIs had at one time revealed disc
herniation and levoscoliosis, she had since undergone various forms of treatment which she
reported were effective and, according to her doctor, she “retained [a] normal range of motion in
her upper and lower extremities, normal strength, and normal sensation.” R. 23. The ALJ noted
that in December 2011, she reported pain medication brought her “80% relief,” and that in
August 2014, she claimed massage therapy resulted in “an almost complete relief of her pain.”
R. 23, 25. In fact, one doctor around this time viewed Brush’s pain as attributable to “muscular
issues and not neurological ones.” R. 23. The ALJ noted that, after Brush underwent an anterior
cervical discesctomy and fusion in 2012, her reported pain and range of motion did not change
apart from temporary reported improvements, that imaging was negative for abnormalities, and
20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04(C), 12.06(C).
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that she “retained [an] essentially normal range of motion, strength, and sensation in all other
body parts,” except her neck and low back. R. 24. In accordance with these findings, the ALJ
found that Brush could perform “sedentary work with restrictions regarding neck use, crouching
or stooping, lifting, pushing, and pulling.” R. 24.
In reaching this RFC conclusion as to Brush’s physical abilities, the ALJ evaluated the
opinions of the various treating physicians and considered opinion evidence as to Brush’s
functional capacities. R. 25, 27-32. He specifically relied on the August 2013 medical opinion
of Dr. Jean Bachar, finding that the neurological results supported “the above noted residual
functional capacity.” R. 24. The ALJ also accorded great weight to the opinions of Dr. Marc
Berezin, an impartial medical examiner, and Dr. Steven Weinstein, an independent medical
examiner, who both examined Brush on multiple occasions, reviewed her medical history, issued
opinions “consistent with the record as a whole” and possessed “a longitudinal understanding of
her condition.” R. 27-28. Both doctors were also specialists in relevant fields: Dr. Berezin in
orthopedics, and Dr. Weinstein in physical medicine, rehabilitation, and pain management. Id.
The opinions of Dr. Enrique Sanz and Dr. Sunitha Polepalle were accorded “some weight,”
because they were “generally consistent” with the notes and opinions of contemporaneous
examining physicians, but accorded less weight because they were given prior to Brush’s surgery
and the doctors did not review Brush’s other medical records. R. 28.
The ALJ accorded little weight to the opinions of Dr. Ammaji Manyam, Mr. Kevin
Stafford (a physical therapist), Dr. Jean Bachar, Dr. Robert DeSantis, and Dr. Marc Levinson
because the opinions either predated Brush’s surgery, were not based on or consistent with the
medical records, or were not supported by “objective” medical evidence. R. 28-29.
As for her mental impairments, the ALJ found that the record “reflects the claimant has
10
limitations, but not to the degree alleged.” R. 29. The ALJ relied extensively on the notes of Dr.
Nelson Hidalgo, observing that the ‘bulk of the[] records . . . discuss the claimant’s relationship
with her boyfriend, living independently in her condo, traveling to Cape Cod for a family
vacation, relationships with her nephew, and the claimant’s displeasure with having to look for
other work.” R. 25. The ALJ noted, however, that the notes did not reflect side effects of
medication or functional deficits. Id. Neither did the record reflect functional loss associated
with panic attacks R. 26. Rather, the ALJ weighed heavily Brush’s own testimony that “she can
feel a panic attack coming on and uses medicine and coping techniques to prevent the panic
attack from manifesting in any significant way.” Id. The ALJ also credited the opinions of
several doctors that Brush had mild limitations with concentration. R. 30-31. As a result, the
ALJ found that the record did not reflect a deterioration in Brush’s functioning commensurate
with her alleged functional loss related to her mental impairments. R. 26, 31.
In reaching his conclusion on Brush’s mental RFC, the ALJ accorded great weight to Dr.
Leslie Helprin, a consultative examiner; Dr. J. Dambrocia, a New York state agency medical
examiner; and Dr. Robert Conciatori, an independent medical examiner, because all their
opinions were “consistent with the medical record as a whole” and they were “familiar with the
disability program.” R. 30-31. Dr. Conciatori also had a “longitudinal understanding” of
Brush’s condition. R. 31. In contrast, Dr. Robert Hidalgo, Dr. Paul Schefflein, Dr. Martin
Ogulnick, and Dr. Jeffrey Newton’s opinions received little weight because the ALJ found their
conclusions were inconsistent with their notes and the record as a whole or not based on mental
status exams. Id. Finally, the ALJ accorded little weight to Global Assessment Functioning
11
scores4 provided by many of the above mental health practitioners because they represented
Brush’s functioning only “at the time of the exam.” R. 30.
Having weighed the credibility of various doctors’ opinions, the ALJ then evaluated
Brush’s credibility. R. 32-33. The ALJ concluded that Brush’s claims as to her impairments
were “not wholly credible.” R. 32. First, the ALJ questioned the candidness of her account of
her abilities. He noted that despite allegations that she was completely disabled, Brush could
reportedly attend birthday parties, a July 4th gathering, a Memorial Day celebration, and family
vacations on Cape Cod, in addition to living and driving independently, and enjoying various
hobbies requiring concentration and fine finger movement. Id. With this view of the evidence,
the ALJ characterized Brush’s testimony as “fraught with inconsistencies” and “lack[ing]
veracity to support her complaints.” Id. Second, Brush received various treatments following
her injury and regularly reported to her physicians that the treatments were improving her
condition. Id. The ALJ viewed this testimony as contradicting her claim of disability. R. 32-33.
Third, the ALJ found that the medical source opinions that supported Brush’s testimony were
inconsistent with the evaluations of the independent medical examiners and seem to recite only
Brush’s self-reported symptoms. R. 33. Fourth, the ALJ found that she was able to work
previously with many of the same mental impairments, and that the treatment notes do not
reflect a deterioration in those impairment areas. Id. Last, he observed that her subjective
complaints of pain and functional limitations were repeatedly rebutted by doctors who found no
objective abnormalities in her back or neck, and at least one who thought Brush exhibited
4
A Global Assessment Functioning score is a rating of a patient’s overall social,
psychological, and occupational functioning. See Mulero v. Colvin, 2014 WL 4081011, at *2
n.1 (S.D.N.Y. Aug. 18, 2014).
12
“symptom amplification.” Id. Based on these findings, the ALJ found Brush’s subjective
complaints of disability “not wholly credible.” R. 32.
At step four, the ALJ found that Brush could no longer work as a custodian or custodial
clerk. Id. Instead, she required “an eroded form of sedentary work.” Id. At step five, the ALJ
assessed whether “there are jobs that exist in significant numbers in the national economy”
considering Brush’s RFC, age, educational attainment, work experience, and the MedicalVocational Guidelines, 20 C.F.R. part 404, subpart P, appendix 2. R. 34. Because Brush’s RFC
was less than the performance requirements for sedentary work under the Medical-Vocational
Rules, the ALJ relied on the VE’s opinion. Id. The ALJ accepted the VE’s testimony that a
person with Brush’s exertional and non-exertional limitations could perform the jobs of
document preparer, stem mounter, addresser, and final assembler, all of which existed in
significant numbers in the national economy. R. 34-35. The ALJ concluded that Brush was not
disabled within the meaning of the Act. R. 35.
II. GOVERNING STANDARDS OF LAW
A. Scope of Judicial Review Under 42 U.S.C. § 405(g)
It is not a reviewing court’s function “to determine de novo whether [a claimant] is
disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citation and internal quotation
marks omitted); accord Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). Rather,
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) (citations and internal quotation marks omitted); accord Greek v. Colvin, 802 F.3d 370,
374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the
13
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”). 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. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Greek, 802 F.3d at 375; Burgess v. Astrue,
537 F.3d 117, 127-28 (2d Cir. 2008); Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006);
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
“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) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds
substantial evidence to support the 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)). 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 v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam). “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. (emphasis in original) (citations
and internal quotation marks omitted). “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 (citations and internal quotation marks omitted).
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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). A person
will be found to be disabled only if it is determined that his or her “impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his or her age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” Id. § 423(d)(2)(A).
To evaluate a Social Security claim, 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); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam);
Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 260 (S.D.N.Y. 2016).
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 (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
15
work activities,” id. § 404.1520(c). Third, if the claimant’s impairment is severe and is listed in
20 C.F.R. part 404, subpart P, appendix 1, or is equivalent to one of the listed impairments, the
claimant must be found disabled regardless of his or her age, education, or work experience. See
id. § 404.1520(a)(4)(iii). Fourth, if the claimant’s impairment is not listed and is not equal to
one of the listed impairments, the Commissioner must review the claimant’s RFC to determine if
the claimant is able to do 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 RFC permits 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 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 Source” Rule
In general, the ALJ must give “more weight to medical opinions” from a claimant’s
treating sources when determining if the claimant is disabled. See 20 C.F.R. § 404.1527(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
sources “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). An ALJ must accord “controlling
weight” to a treating source’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
16
claimant’s] case record.” Id. Inversely, the opinions of a treating source “need not be given
controlling weight where they 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.”) (citations omitted).
If the ALJ does not give controlling weight to a treating source’s opinion, the ALJ must
provide “good reasons” for the weight given to that opinion or face remand. See Greek, 802
F.3d at 375 (quoting Burgess, 537 F.3d at 129-30). When assessing how much weight to give
the treating source’s opinion, the ALJ should consider factors set forth in the Commissioner’s
regulations, which include (i) the length of the treatment relationship and the frequency of the
examination; (ii) the nature and extent of the treatment relationship; (iii) the supportability of the
opinion with relevant evidence, particularly medical signs and laboratory findings; (iv) the
consistency of the opinion with the record as a whole; (v) whether the opinion is from a
specialist; and (vi) other relevant factors. See 20 C.F.R. § 404.1527(c)(2)-(6); see also Ellington
v. Astrue, 641 F. Supp. 2d 322, 330-31 (S.D.N.Y. 2009) (“the ALJ should weigh the treating
physician’s opinion along with other evidence according to the factors” listed in 20 C.F.R.
§ 404.1527(c)(2)-(6)). The Second Circuit has stated that it will “not hesitate to remand when
the Commissioner has not provided ‘good reasons’ for the weight given to a treating
physician[’]s opinion and [it] will continue remanding when [it] encounter[s] opinions from
ALJ[s] that do not comprehensively set forth reasons for the weight assigned to a treating
physician’s opinion.” Halloran, 362 F.3d at 33; see also Greek, 802 F.3d at 375-77.
17
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) (additional citations omitted). 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, 775-76 (2d Cir. 1999) (summarizing the holding of and citing with approval
Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985)). Nonetheless, when
discounting a claimant’s credibility regarding his or her residual functional capacity, regulations
impose some burden on the ALJ to explain his or her decision. As the Second Circuit has stated:
When determining a claimant’s RFC, 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; see also 20 C.F.R. § 404.1529. To evaluate a claimant’s assertion of a
limitation, the ALJ must engage in a two-step process:
At the first step, the ALJ must decide whether the claimant suffers from a
medically determinable impairment that could reasonably be expected to produce
the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from
the fact that subjective assertions of pain alone cannot ground a finding of
disability. 20 C.F.R. § 404.1529(a). If the claimant does suffer from such an
impairment, at the second step, the ALJ must consider “the extent to which [the
claimant’s] symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence” of record. Id. The ALJ must consider
“[s]tatements [the claimant] or others make about [her] impairment(s), [her]
restrictions, [her] daily activities, [her] efforts to work, or any other relevant
statements [she] make[s] to medical sources during the course of examination or
18
treatment, or to [the agency] during interviews, on applications, in letters, and in
testimony in [its] administrative proceedings.” 20 C.F.R. § 404.1512(b)(3); see
also 20 C.F.R. § 404.1529(a); S.S.R. 96-7p.
Genier, 606 F.3d at 49 (alterations and emphasis in original).
The SSA has issued regulations relating to reports of pain or other symptoms affecting
the ability to work by a claimant for disability benefits. 20 C.F.R. § 404.1529(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). 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).
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); accord Craig, 218 F. Supp. 3d at 263. 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
19
discount a claimant’s subjective complaints.” Aponte v. Sec’y, Dep’t of Health & Human
Servs., 728 F.2d 588, 591 (2d Cir. 1984) (internal 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 . . . .”).
III. DISCUSSION
Brush makes a number of arguments attacking the ALJ’s decision. She contends (1) that
the ALJ improperly found she did not meet Listing § 12.04, Pl. Mem. at 15; (2) that the ALJ did
not properly apply the “treating physician rule,” id. at 12-15, 20; (3) that the ALJ’s RFC
determination was not supported by substantial evidence, id. at 20; and (4) that the ALJ did not
properly assess her credibility, id. at 20-21. Because the ALJ’s application of the treating source
rule affects his Listing § 12.04 and RFC determinations, we begin there.
A. Treating Source Rule
1. Physical Impairments
Brush asserts that the ALJ mischaracterized the physical exam findings of Dr. Levinson,
see Pl. Mem. at 13-14, and misused her testimony to discredit Dr. DeSantis’s opinions, id. at 1415, and that therefore the ALJ improperly gave their opinions little weight, id. at 13-15. In a
similar vein, Brush objects to the weight the ALJ gave to the opinions given by independent
examining physicians Drs. Berezin and Weinstein. Id. at 12-13.
Dr. Levinson treated Brush from 2011 to 2013. See, e.g., R. 436, 456, 762. The ALJ
stated that in May 2013, Dr. Levinson opined that “Ms. Brush still cannot lift, push and pull as
much as usual.” R. 29 (citing “Ex. 30F at 3”), 765. The ALJ afforded this opinion “very little
weight,” because it was not “supported by the medical evidence,” was “vague . . . as Dr.
Levinson does not tell us the maximum amount of weight the claimant can maneuver,” and the
20
opinion stood in contrast to “largely normal” physical exam findings. R. 29. Brush takes issue
with the last reason, contending that the ALJ was “just wrong” in his characterization of the
evidence as “largely normal.” Pl. Mem. at 13. Rather, Brush argues, Dr. Levinson made
abnormal findings at an October 2011 exam and a June 16, 2013 exam. Id.
To begin with, Dr. Levinson did not in fact provide the opinion at issue. Rather, a
physical therapist at Pro Motion Physical Therapy, Paul Eghazaly, provided this opinion. See R.
766. Because a physical therapist is not an acceptable medical source, this opinion is not due
controlling weight. See, e.g., Molina v. Colvin, 2014 WL 2573638, at *9 (S.D.N.Y. May 14,
2014) (“A physical therapist is not an ‘acceptable medical source’ as defined in the
regulations.”) (quoting Cascio v. Astrue, 2012 WL 123275, at *3 (E.D.N.Y. Jan. 17, 2012));
accord Littlefield v. Colvin, 2017 WL 4221142, at *24 n.27 (S.D.N.Y. Aug. 31, 2017). In any
event, we find no error with the ALJ’s decision to accord the opinion little weight because even
if we had agreed with Brush about Dr. Levinson’s physical exam findings — which we do not —
we would still find the ALJ’s other reasons for giving little weight to Eghazaly’s opinion
supported by substantial evidence.
First, the ALJ noted that Eghazaly’s opinion was “a vague statement . . . provid[ing] little
insight as Dr. Levinson [sic] does not tell us the maximum amount of weight the claimant can
maneuver.” R. 29. We agree that the statement is vague. To determine whether an individual
can meet the exertional requirements of work in the national economy, the ALJ must determine
how many pounds a claimant can lift and how frequently she can lift that weight. See 20 C.F.R.
§ 404.1567(a). Here, Eghazaly’s statement provided no such guidance. For this reason alone,
the ALJ did not err in discounting it.
21
Second, the ALJ fairly concluded that the opinion “was not supported by the medical
evidence” in the record, R. 29, because the opinion contradicts a March 2013 report of Dr.
Jacobs, a treating source, who observed that Brush had 5/5 strength in her shoulders and wrists,
normal reflexes, intact sensation, and that she walked with a normal gait and station. R. 716.
As a result, the ALJ had “good reasons,” Halloran, 362 F.3d at 33, for giving very little
weight to Eghazaly’s opinion. See Veino, 312 F.3d at 588 (treating sources “need not be given
controlling weight where they are contradicted by other substantial evidence in the record.”).
Additionally, as the contemporaneous physical exam findings were indeed “largely
normal,” the ALJ did not mischaracterize them. R. 29. The most adverse finding in the June
2013 examination (actually conducted by Eghazaly) is that Brush had 12 degrees of extension in
her lumbar region while a normal individual has a 25 degree extension. See R. 765-66.
Otherwise, the examination reports cervical and lumbar testing close to a normal range (e.g., 40
degree right lateral flexion when normal is 45 degrees) and reports negative straight leg raise
tests bilaterally. Id. Similarly, in the October 2011 exam that Brush cites extensively, see Pl.
Mem. at 13, Dr. Levinson reports testing “within normal limits” for sensation, strength, and
tenderness in the upper extremities; some decreased range of motion, tenderness, and bilateral
spasm in the lumbar spine, but “normal” lumbar rhythm, bilateral sacroiliac mobility, and right
rotation with flexion; and testing “within normal limits” of range of motion, muscle strength, and
tenderness in the lower extremities. See R. 433-34. Brush does correctly note some abnormal
findings in the cervical spine, see Pl. Mem. at 13, but these results are not overwhelmingly
negative, see R. 433. Additionally, Brush quotes the doctor’s observations of her limited ability
to ambulate during both the June 2013 and October 2011 exams, see Pl. Mem. at 13, but such
observations were not the objective “physical exam findings” that the ALJ was referring to, see
22
R. 29, which were rather those identified by Dr. Levinson in the June 2011 exam underneath the
heading “Physical Examination,” R. 433. Accordingly, we find that the ALJ did not err in his
decision to accord little weight to Eghazaly’s opinion.5
Brush also objects to the “very little weight” given Dr. DeSantis’s opinion that she could
not perform sedentary work, contending that the ALJ misconstrued Brush’s hearing testimony
about her lifting capacity in rejecting Dr. DeSantis’s opinion. Pl. Mem. at 14-15. As the ALJ
noted, however, Dr. DeSantis is a chiropractor, and because a chiropractor is not an “acceptable
medical source,” an ALJ is not required to give a chiropractor’s opinions controlling weight
under the Commissioner’s regulations for treating sources. See Diaz v. Shalala, 59 F.3d 307,
313-14 (2d Cir. 1995) (chiropractor does not qualify as an acceptable medical source and
therefore under no circumstances can the regulations be read to require an ALJ to give
controlling weight to a chiropractor’s opinion); see also SSR 06-03P, 2006 WL 2329939, at *2
(S.S.A. Aug. 9, 2006) (“other sources,” like a chiropractor, “cannot establish the existence of a
5
Brush also challenges the accuracy of the ALJ’s statement that Dr. Levinson’s “various
opinions . . . all provide a percentage of impairment and are not function by function
assessment[s],” R. 29. See Pl. Mem. at 14. Brush does not cite to any statements in the record
to support this argument, however. Her only counterexample is a diagnosis given on June 11,
2013 by Dr. Levinson. Id. (citing R. 822). This diagnosis, however, does not speak to Brush’s
functional abilities and is therefore useless for evaluating the RFC. See R. 822. We also note
that Dr. Levinson’s disability percentages were provided for the purpose of bolstering Brush’s
State of New York workers’ compensation claim. R. 26. Such opinions, however, are not
entitled to any weight, because they do not address the Commissioner’s role in determining the
ultimate question of disability and because they are not function-by-function assessments. See
20 C.F.R. § 404.1504; see also Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984) (noting that
Social Security disability determinations “are not geared to a percentage of disability, as are
worker’s compensation disability conclusions” and thus “the ALJ could reasonably disregard so
much of the physicians’ reports as set forth their conclusions as to [the claimant’s] disability for
worker’s compensation purposes.”); accord Ackley v. Colvin, 2015 WL 1915133, at *5
(W.D.N.Y. Apr. 27, 2015). Thus, the ALJ did not commit error in giving the opinions very little
weight. R. 29.
23
medically determinable impairment . . . [but] may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.”); accord Monette v.
Astrue, 269 F. App’x 109, 113 (2d Cir. 2008) (summary order); Shamburger v. Colvin, 2017 WL
4003032, at *3 (W.D.N.Y. Sept. 12, 2017) (citing cases). Thus, the ALJ did not need to consider
the treating source rule in giving his opinions “very little weight.” R. 29.
In any event, Brush’s testimony was only one of several reasons why the ALJ gave Dr.
DeSantis’s opinion little weight. The ALJ also reasoned that Dr. DeSantis’s opinion was “not
well supported by the claimant’s admitted activities of daily living, the exams from multiple
independent medical examiners [i.e., Drs. Weinstein and Berezin], [and] the objective findings in
the record.” R. 29. We find that these reasons support the ALJ’s decision. For instance, the
ALJ correctly observed that Dr. Weinstein, a specialist in physical medicine, rehabilitation, and
pain, contradicted Dr. DeSantis’s accounts of Brush’s capacity, because Dr. Weinstein found
only “limited objective abnormality that [would] prevent[] this claimant from working in some
capacity” and that Brush could “exert up to 20 pounds of force occasionally and up to 10 pounds
of force frequently.” R. 969. Likewise, Dr. Berezin, another orthopedic specialist, concluded in
December 2015 that Brush had only a “moderate (50%) degree of disability.” R. 1028.
Additionally, the claimant testified to her ability to clean, cook, sit, stand, walk outside, and
leave the house for shopping. See R. 54, 65-66, 137, 143, 612-13, 967. Last, objective testing
from Dr. Jacobs in 2012 and 2013 showed that Brush’s surgery had been successful, that she
reported consistent improvement and reduced pain and numbness, and that she showed five out
of five upper extremity strength and two plus reflexes. See R. 715-16, 722-24, 725-26. From
Brush’s testimony, Dr. Jacob’s examinations, and the contrary opinions of Drs. Weinstein and
24
Berezin, it was reasonable of the ALJ to conclude that Dr. DeSantis had not accurately assessed
Brush’s functional limitations.
In contrast to the weight given to the opinions of Drs. DeSantis and Levinson, the ALJ
gave great weight to the opinions of Drs. Berezin and Weinstein. R. 27. We find no error in that
choice.6 The ALJ granted these opinions deference because each doctor had a longitudinal view
of the case, the opinions changed with Brush’s various treatments, the doctors’ opinions were
consistent with the record as a whole, the doctors cited to objective medical evidence to support
their conclusions, and both doctors were specialists in relevant areas. R. 27. In so reasoning, the
ALJ referenced each of the § 404.1527 factors. See also Greek, 802 F.3d at 375-77. Having
examined these doctors’ reports, see R. 962-69 (Dr. Weinstein’s second evaluation), 1025-29
(Dr. Berezin’s fourth evaluation), we find the ALJ’s reasons supported by substantial evidence.
Both doctors had access to Brush’s medical records at the time of their examinations and
provided summaries of her medical history. See, e.g., R. 496-97, 881-84. Each saw Brush more
than once: Dr. Berezin, for instance, examined Brush in 2011, 2012, 2013, and 2015, see R. 496,
500, 834-35, 1025-29; while Dr. Weinstein examined Brush in both 2014 and 2015, see R. 88187, 962-69. And both grounded their opinions in objective medical evidence and the record.
See, e.g., R. 835 (Dr. Berezin in 2013 noting that “[t]here is discrepancy [between] her current
complaints [to him with the] office note of Dr. Jacobs of 03/25/13 where she states she has been
progressively improving since the surgery”), 882 (Dr. Weinstein also noting the discrepancy
between her current complaints and Dr. Jacobs’ office notes from March 25, 2013), 969 (Dr.
6
Brush asserts, without evidentiary support, that these two doctors are biased in favor of
the insurance industry. See Pl. Mem. at 12-13. Brush, however, cites no evidence or case law
for her claim and thus we do not address it further.
25
Weinstein noting that “[a]side from the claimant’s history of ACDF at C5-6, there is limited
objective abnormality that prevents this claimant from working in some capacity,” and then
citing the objective evidence). We also note that an ALJ may give more weight to non-treating
doctors’ opinions as long as he or she provides good reasons for doing so. See Halloran, 362
F.3d at 32-33 (upholding ALJ decision to accept examining source’s findings as more consistent
with the record where the ALJ provided “good reasons”); see also Valentin v. Berryhill, 2017
WL 3917004, at *13 (S.D.N.Y. Sept. 6, 2017) (“[consulting sources] may be favored where a
treating source’s opinion does not have adequate support”); Mayor v. Colvin, 2015 WL
9166119, at *18 (S.D.N.Y. Dec. 17, 2015) (ALJ properly apportioned more weight to
consultative psychiatric examiner than to treating source since it was more consistent with
record). Having provided such reasons, the ALJ committed no error in according greater weight
to the opinions of Drs. Berezin and Weinstein than to Drs. Levinson and DeSantis.
2. Mental Impairments
Brush contends that the ALJ did not properly weigh the testimony of her treating
psychologists, Drs. Hidalgo, Ogulnick, and Newton. Pl. Mem. at 16, 18-20.
The ALJ apportioned little weight to the opinions of Dr. Newton because he offered
opinions inconsistent with his notes. R. 31-32. Specifically, the ALJ concluded that Dr.
Newton’s opinion that Brush had moderate to extreme limitations in most mental abilities was
not supported by “the record as a whole,” and remarked that Dr. Newton “supported his
conclusions with inconsistent narratives.” R. 31. We agree. Dr. Newton concluded that Brush
could not work and that she exhibited marked to extreme limitations in her mental abilities, R.
1000-02, but his contemporaneous notes mostly reflect concerns over fraud allegations, her
changing doctors, her financial resources, and her chronic pain, R. 974-75, 979, 983-85, 1016.
26
Were Brush exhibiting severe mental impairments, one would expect a treating psychiatrist to
note them and potentially to adjust medication based on such findings. See generally Valentin,
2017 WL 397004, at *15 (ALJ properly attributed little weight to psychiatric opinions that
ignored positive signs in providing a functional limitations opinion and contradicted the record
as a whole). Here, however, we find no indication in Dr. Newton’s notes that Brush was
exhibiting extreme limitations in her mental functioning. Additionally, Brush’s own testimony
did not corroborate Dr. Newton’s opinion that Brush “barely takes care of her needs.” R. 1021.
Rather, Brush testified to regularly driving, grocery shopping, applying for jobs, cleaning her
apartment, reading and watching TV, attending biweekly therapy sessions and other doctors’
appointments, and to maintaining an eight-year relationship, see R. 54, 65-66, 110-11, 137, 143,
612-13, 967. Finally, the ALJ accorded little weight to Dr. Newton’s opinions because they
contradicted the findings of Drs. Helprin, Dambrocia, and Conciatori, whose opinions are
examined below. Given these inconsistencies, the ALJ was not required to give Dr. Newton’s
opinions controlling weight. See Halloran, 362 F.3d at 32 (treating physician’s opinion not
controlling where opinion internally inconsistent or inconsistent with the record as a whole).
The ALJ was also justified in discrediting Dr. Hidalgo’s opinions. Although Dr. Hidalgo
asserted that Brush’s mental abilities were deteriorating, R. 775, his notes did not reflect any
deterioration in functional abilities, see R. 597-603, 666-67, 679-83, 711, 713, 716, 775, 801,
816-20. Dr. Hidalgo’s May 2012 report consisted of mostly normal findings with regard to
concentration, memory, understanding, persistence, and social interaction and adaptation.
R. 597-603, 793-99. By November 2012, Dr. Hidalgo reports moderate restrictions of daily
living, marked difficulties in maintaining social functioning, and constant deficiencies of
concentration and deterioration, R. 667-71, but his notes do not support these opinions.
27
Moreover, Dr. Hidalgo’s opinions were contradicted by the opinions of Dr. Helprin, who found
in May 2012 that Brush was cooperative, had an adequate manner of relating to others, exhibited
normal social skills, talked coherently, could concentrate within a normal range, and had an
unremarkable overall presentation. R. 611-14. Likewise, Dr. Dambrocia7 observed in July 2012
that Brush “retained adequate cognitive functioning,” “[was] able to understand and remember
instructions, and sustain attention and concentration for tasks,” though “[she] may have
difficulties relating with others and/or adapting to changes.” R. 654. Additionally, Dr.
Conciatori found in November 2012 that Brush was “alert and oriented,” “cooperative,”
“coherent and goal-directed,” and that her short term memory and concentration were intact.
R. 754. Nonetheless, in June 2013, Dr. Hidalgo reaffirmed his November 2012 conclusion in a
letter provided to Brush, opining in a vague fashion that “it is highly improbable that at this time
she can hold or sustain any work needing a healthy emotional make-up.” R. 775. On this
record, the ALJ had sufficient evidence to discount Dr. Hidalgo’s opinions. In doing so, the ALJ
also considered all the § 404.1527 factors, including the length and nature of the treating
relationship, the support of the opinion with relevant evidence, the opinion’s consistency with
the record, and the doctor’s speciality. R. 31.
For the same reasons, the ALJ did not err in rejecting Dr. Ogulnick’s opinion, expressed
in a November 2015 “mental residual functional capacity assessment” questionnaire, R. 9981005, that Brush had moderate to marked impairments in most functional areas. R. 26, 31. The
7
Brush argues that Dr. Dambrocia’s opinion should not have been afforded any weight
because one report, R. 638, identifies him as a cardiologist. Pl. Mem. at 16. The Government
directs our attention, however, to his licensing information which shows that he is a licensed
psychologist. Verification Searches, Dambrocia, Joseph Paul, License No. 010566,
http://www.op.nysed.gov/help.htm#status. The notation was therefore a mistake.
28
questionnaire diagnoses Brush with major depression, single episode, severe, and notes that she
exhibits anhedonia or pervasive loss of interests, sleep disturbance or dysfunction, feelings of
guilt or worthlessness, difficulty thinking or concentrating, poor memory, short attention span,
suicidal ideation, anxiety (generalized, persistent), motor tension, apprehensive expectation,
intrusive recollection of a traumatic experience, mood disturbance and emotional lability.
R. 998-99. In the questionnaire, Dr. Ogulnick opines that Brush had marked limitations in
“remember[ing] and understand[ing] detailed instructions,” “carry[ing] out detailed
instructions,” “maintain[ing] attention and concentration for extended periods,” “maintain[ing]
regular attendance,” “perform[ing] consistently without an unreasonable number and length of
rest periods,” “complet[ing] a normal workweek without interruption from psychologically
based symptoms,” and “accept[ing] instructions and respond[ing] appropriately to criticism from
supervisors.” R. 1000-02. Dr. Ogulnick’s treatment notes, however, do not support such
extreme limitations and noted symptoms. For instance, his notes from 2015 largely report
Brush’s concerns about her treatment by the workers’ compensation system and the SSA, and
stress over her finances, while observing that she exhibits no delusions, that her insight and
judgment are fair to good, and that she is applying for jobs. See R. 946, 948, 950-51. The
treatment notes also do not reference reductions in functioning capacity, apart from observations
that Brush spoke in a choppy, hesitant, and distracted manner, that her thinking was scattered,
that she was experiencing panic attacks, and that she claimed reductions in concentration when
driving at night. R. 838-42, 939-41, 942-55, 998-1005. Moreover, the treatment notes were
contradicted by the report from Dr. Conciatori provided in December 2015, see R. 1033-37,
which found that Brush had “a mild degree of psychiatric treatment,” after observing, inter alia,
that Brush “correctly interpreted proverbs and was able to abstract without difficulty,” R. 103529
36. The ALJ specifically noted that he rejected Dr. Ogulnick’s opinion that Brush has “the
ability to take care of ‘basic daily activities such as grooming, but is limited . . . [in] such
activities as cleaning, shopping, etc.’” R. 31 (quoting Dr. Newton at R. 1004). Dr. Ogulnick’s
assertion sharply contrasts with Brush’s repeated testimony to the contrary about her abilities to
drive, clean, cook, and perform other routine daily activities beyond grooming. See R. 54, 6566, 137, 143, 612-13, 967. For all these reasons, the ALJ could properly choose to give little
weight to Dr. Ogulnick’s functional assessments.
Finally, Brush challenges the weight given to Dr. Helprin’s opinion about Brush’s ability
to deal with stress in the workplace. Pl. Mem. at 17. While the ALJ generally gave “great
weight” to Dr. Helprin’s opinion, the ALJ did not give significant weight to Dr. Helprin’s
opinion about Brush’s capacities for stress. R. 30. Giving different weight to different parts of a
medical opinion is generally acceptable. See Howe v. Colvin, 2013 WL 4534940, at *14
(S.D.N.Y. Aug. 27, 2013). Dr. Helprin had opined that Brush could follow and understand
simple directions and instructions, perform simple rote tasks, maintain attention and
concentration, maintain a regular schedule, make appropriate decisions, but had difficulties with
relationships and dealing with stress “due to her anxiety in public places.” R. 613. The ALJ
found that last opinion “unsupported by the record,” because the record suggested that with
medication and therapy Brush could deal with stress from work. R. 30. The ALJ pointed to
Brush’s past work experience while also suffering from anxiety and panic attacks. Id. Indeed,
Brush testified at the hearing that she started taking antianxiety medications at about age 20.
See R. 120-21, 141. And while she also alleges that her anxiety worsened following her injury,
R. 120-21, the ALJ also had available Dr. Conciatori’s opinion in November 2012 that the work
accident only accounted for 30% of her psychiatric symptoms at the time, R. 751. Given the
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lack of evidence negating Brush’s ability to handle stress in the workplace using medicine and
psychotherapy treatment, the support for both sides from the record, and “the ALJ’s duty, as the
trier of fact, to resolve conflicts between conflicting medical opinions,” see Hayes v. Berryhill,
2017 WL 4326118, at *7 (S.D.N.Y. Sept. 28, 2017) (citing Richardson, 402 U.S. at 399), we find
that the ALJ could properly discount Dr. Helprin’s opinion concerning Brush’s capacity for
workplace stress.
In sum, we find no error in the ALJ’s application of the treating source rule to this case.
B. Claimant’s Credibility
In addition to arguing misapplication of the treating source rule, Brush also contends that
the ALJ erred in finding her subjective allegations of disability not wholly credible. See Pl.
Mem. at 20-21. As previously noted, it is not the Court’s role to decide the credibility of
witnesses but rather the Commissioner’s. See Tejada, 167 F.3d at 775-76. “[I]t is the function
of the Commissioner, not ourselves, . . . to appraise the credibility of witnesses, including the
claimant.” Campbell v. Astrue, 465 F. App’x 4, 7 (2d Cir. 2012) (summary order) (alterations
omitted) (internal quotation marks omitted) (quoting Carroll, 705 F.2d at 642).
In this case, substantial evidence supports the ALJ’s credibility finding. Following the
Commissioner’s regulations, the ALJ first determined that Brush’s reported symptoms were
consistent with her medically determinable impairments, R. 22, but also concluded that Brush’s
testimony regarding the extent of her functional limitations was “poorly supported by the
contemporaneous treatment notes of her medical providers” and therefore not credible, R. 32.
The ALJ noted that Brush had reported limitations in her daily activities consistent with her
symptoms, but also noted that she did “not appear to [] provide a candid account of abilities
[that] she [did] retain.” Id. Brush, noted the ALJ, also told several medical providers — in
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contradiction to her testimony — that treatment was improving her condition and reported no
side effects to her medications. Id. The ALJ further noted that Brush’s testimony contradicted
the results of objective medical testing concerning her neurological deficits and lingering
problems in her back after surgery. R. 33. Last, the ALJ noted that her “treatment notes do not
reflect a deterioration of her functioning as alleged” and that she was previously able to work in
spite of the psychological impairments she now claims totally disable her. Id.
Brush argues that her testimony “has been consistent throughout” and “consistent with
the medical evidence in the record,” Pl. Mem. at 20, but she does not specify where the ALJ
erred in his opposite finding and we find the record supports the ALJ’s finding. For example,
Brush provided conflicting testimony to Dr. Jacobs and Dr. Berezin concerning the effect of
surgery on her back pain, see R. 835 (Dr. Berezin noting conflicting testimony); see also R. 71516 (Dr. Jacobs’ report noting that “patient states the neck pain has progressively improved since
the surgery”), 722-24 (same), 727 (same), and she asserted that she feels numbness in her fingers
and radiating pain from her neck, R. 61, all while having no observable neurological deficits and
normal x-rays and MRIs, R. 958. Accordingly, we find no error in the ALJ’s credibility
determination.
C. Psychological Impairment Listings
Brush argues that the ALJ erred in determining that she did not meet the elements of
Listing § 12.04, Affective Disorders. Pl. Mem. at 16-20. We disagree.
The ALJ had substantial evidence to support his conclusion that Brush met none of the
paragraph B factors. R. 20. As for daily activities, the ALJ found only a mild restriction,
observing that Brush lived independently, drove, shopped, cooked, cleaned, attended parties and
family getaways, and applied for “hundreds” of jobs. Id. These findings are supported by
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Brush’s hearing testimony and the notes in the record. See R. 54 (driving), 65-66 (shopping and
chores), 110-11 (job search), 137 (describing daily activities, such as visits to post office), 143
(going to Cape Cod each summer, considering trip to San Francisco), 612-13 (reported daily
activities for 2012 psychiatric evaluation), 967 (daily activity report for 2015 IME). The ALJ
found greater impairments in Brush’s social functioning, but ultimately concluded that they were
only moderate. R. 20. In support of this finding, the ALJ noted that Brush had maintained a
long-term relationship with her domestic partner, and occasionally attended parties and family
gatherings, though the ALJ accepted that her anxiety and depression had interfered with her
relationships. Id. This finding is also supported by Brush’s testimony. R. 82 (4th of July Party),
116 (long-term relationship with her partner), 146-47 (Cape Cod). Next, the ALJ found that
Brush possessed moderate difficulties with concentration, persistence, and pace. R. 21. As the
ALJ noted, Brush managed her own finances, applied for multiple jobs, completed craft hobbies,
watched television, and read. R. 110-11, 606, 612-13. Additionally, Dr. Helprin had opined that
Brush was able to maintain attention and concentration. R. 613. Finally, the ALJ found no
episodes of decompensation. R. 21. This finding is supported by extensive treatment notes from
her treating and examining psychiatrists that do not document a hospitalization or other acute
exacerbation of her symptoms.
The ALJ also had substantial evidence to support his finding that Brush met none of the
Paragraph C criteria. The ALJ found no evidence that Brush “cannot function outside a highly
supportive living arrangement,” R. 21, a finding supported by Brush’s testimony that she has
lived independently and managed her own affairs outside and inside the home throughout her
application process, see, e.g., R. 967 (daily activity report for 2015 IME). The ALJ also found
no repeated episodes of decompensation in the record or a “residual disease process” that leaves
33
Brush vulnerable to predictable decompensation, R. 21, and neither do we. The record does
demonstrate that Brush experienced persistent panic attacks, anxiety, and depression, but she has
never been hospitalized or otherwise experienced an acute deterioration in her functioning. See,
e.g., R. 423-31 (notes from February 2011 hospitalization for panic attack, predating her
allegedly disabling injury). She also reported an ability to preview her panic attacks and manage
her depression and anxiety through medication and coping techniques. See R. 946-55.
D. RFC Determination
With regard to the ALJ’s determination of Brush’s physical RFC, Brush argues that the
ALJ “should have found greater limitations on the plaintiff’s ability to sit, use her hands for
fingering and handling, and rotate/extend and flex the neck, . . . a greater need for unscheduled
breaks . . . . [and] considered . . . claimant’s likeliness to be absent from work at least three times
per month.” Pl. Mem. at 20. While some evidence in the record supports these limitations, we
find ample evidence to the contrary that supports the ALJ’s RFC determination.
As for the RFC generally, two treating sources and three examining sources concluded
that Brush was capable of performing a wide range of sedentary work with limited exertional
capacities. Dr. Polepalle, a treating physician, concluded in April 2012 that Brush was restricted
only in pushing, pulling, or lifting more than 15 pounds, R. 540 — a weight that is more than
five pounds over the requirement for sedentary work, see 20 C.F.R. § 404.1567(a) (sedentary
work requires “lifting no more than 10 pounds at a time”). Likewise, Dr. Jacobs, Brush’s
surgeon, noted his agreement with the functional limitations opinion of Physical Therapist Kevin
Stafford who had opined, seven months after Brush’s surgery, that Brush was capable of
sedentary work, so long as she could alternate positions as needed, walk at her own pace, and
was not expected to constantly manipulate small objects with her fingers. See R. 692-93 (letter
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from Stafford to Dr. Jacobs containing Stafford’s functional capacity assessment), 717 (Dr.
Jacobs noting that he concurred with Stafford’s opinion), 724 (same). Additionally, Dr. Berezin,
who evaluated Brush four times, concluded in 2011 that Brush could perform sedentary work
with minimal lifting, R. 500, and in 2013 after Brush’s surgery, opined that Brush could “work
in modified capacity involving activities that require no repetitive bending, lifting, no repetitive
turning over neck, and no lifting greater than 10 to 15 pounds,” R. 835. Supporting this opinion,
Dr. Weinstein concluded in late March 2015 that Brush was “capable of working at a light duty
demand level with the expectation of being able to exert up to 20 pounds of force occasionally
and up to 10 pounds of force frequently.” R. 969. As explained in Section III.A.1 above, the
ALJ properly attributed great weight to the medical opinions of Dr. Berezin and Dr. Weinstein,
as they were based on a review of medical records and objective medical testing, and reflected
variations in Brush’s condition over time.
Brush contends that the ALJ should have found greater limitations in the use of her hands
for fingering and handling. Pl. Mem. at 20. But the medical record supports the ALJ’s finding
that Brush could frequently use her hands for fingering and handling. Dr. Manyam in May 2012
noted that Brush’s “[h]and and finger dexterity [was] intact,” and that her “grip strength [was]
5/5 bilaterally.” R. 607. Dr. Jacobs in March 2013 found that Brush had full five out of five
strength bilaterally in her shoulders and wrists, that her reflexes were intact, and endorsed an
opinion from Stafford that limited Brush to frequent manipulation of small objects with her
fingers. R. 716. Dr. Weinstein similarly found Brush’s reflexes intact and strength “well
preserved” bilaterally in her upper and lower extremities in March 2015, R. 967-68, as did Dr.
Berezin in December 2015, R. 1028. And Dr. Bachar, a treating source, opined in June 2015
that Brush could grasp, turn, and twist objects and feel objects with her hands and arms at work
35
on a “regular basis.” R. 935. Additionally, testing in August 2015 discovered no new
neurological abnormalities or significant changes in Brush’s abilities to use her hands. R. 95758.
Brush also argues that the ALJ made two findings with respect to Brush’s neck flexibility
that were improper, see Pl. Mem. at 20 — first, that Brush can “frequently flex, extend, and
rotate the neck,” and second, that she “can constantly hold the neck in one position,” R. 21. We
find substantial support in the record for these findings. The ALJ noted that Brush herself
testified that she can drive, that she cooks and cleans, and that she uses a computer for around
thirty minutes at a time, all activities that require either frequent moving the neck or constantly
holding it one position, or a mixture of both. See R. 63, 65, 115. The ALJ also noted various
medical opinions that found Brush had no remaining neck impairments, had undergone a
successful surgery to repair a disc injury in her neck, and retained flexibility in her neck. See R.
717-728 (Dr. Jacobs reporting after surgery that Brush “is making a steady improvement” and
reporting normal muscle tone bilaterally), 835 (Dr. Berezin noting that Brush’s neck showed “no
tenderness, no spasm, active range of motion, forward flexion 30 degrees, extension 30 degrees,
rotation 60 degrees, forward rotation 45 degrees”), 886 (Dr. Weinstein noting that although
Brush complained of neck discomfort, there were “no objective residual clinical findings and no
postsurgical imaging findings” to corroborate her complaints), 958 (Dr. Peretz’s tests in 2015
discovered no neurological abnormalities and reaffirmed that the surgery had been a success).
Dr. Berezin did recommend against “repetitive” turning of the neck, R. 835, but we do not view
this as inconsistent with the ALJ’s RFC which limits Brush to “frequent” flexing of the neck. R.
835.
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Finally, we reject Brush's argument that the ALJ erred in declining to find that Brush was
likely to be absent from work at least three times a month. See Pl. Mem. at 20. While Dr.
Newton opined that Brush would be absent from work two to four times a month because of her
depression and anxiety, R. 1021, we have already explained why the ALJ could properly
discount Dr. Newton's opinion. See Section IIl.A.2. Additionally, other evidence in the record
contradicted that opinion. Dr. Helprin, for example, concluded that Brush could maintain
attention and concentration and maintain a regular schedule. R. 613. This opinion was
supported by findings that Brush was cooperative, and had intact concentration and attention. R.
612. Accordingly, we find substantial evidence support the ALJ's RFC determination.
IV. CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings
(Docket# 22) is granted and Brush's motion for judgment on the pleadings (Docket# 16) is
denied. The clerk is requested to enter judgment and to close the case.
SO ORDERED.
Dated: March 26, 2018
New York, New York
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