Craig v. Social Security Administration, Commissioner

Filing 13

OPINION AND ORDER: The Court DENIES Plaintiff's 7 Motion to Reverse Decision of Commissioner and GRANTS Defendant's 12 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 7/10/2012. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Beatrice Craig,
Plaintiff,
v.

Civil Action No. 2:11-CV-116

Social Security Administration,
Commissioner,
Defendant.

OPINION AND ORDER
(Docs. 7, 12)
Plaintiff Beatrice Craig brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and reversal of the decision of the Commissioner
of Social Security (“Commissioner”) denying her application for disability insurance
benefits. Pending before the Court are Craig’s motion to reverse the Commissioner’s
decision (Doc. 7), and the Commissioner’s motion to affirm (Doc. 12). For the reasons
stated below, the Court DENIES Craig’s motion and GRANTS the Commissioner’s
motion.
Background
Craig was forty-six years old on the alleged disability onset date of
March 31, 2004. (AR 57, 62, 589.) She completed tenth grade and has held a number of
jobs, including machine operator and fast food worker. (AR 66, 112, 590.) In November
2004, Craig stopped working due to a broken foot and back pain. (AR 62, 68.) She

claims to have pain in her “[l]ower [b]ack going down [her] right side and leg” (AR 75),
and that she takes medication, such as Flexeril and ibuprofen, to abate her ailments (AR
66).
In February 2005, Craig filed applications for supplemental security income and
disability insurance benefits. (AR 54, 57.) In support of her disability application, Craig
alleged back problems, sciatica, and a broken foot. (AR 61.) She subsequently added
irritable bowel syndrome and depression to her claimed impairments. (AR 590, 596.)
Craig’s application was denied initially and on reconsideration. (AR 20-21, 35-40.)
On November 7, 2006, Administrative Law Judge (“ALJ”) Frederick Harap
conducted a hearing on Craig’s application. (AR 471.) On February 23, 2007, ALJ
Harap issued a decision finding Craig not disabled under the Social Security Act. (AR
19.) Thereafter, the Decision Review Board denied Craig’s request to review ALJ
Harap’s determination, and she commenced an action in this Court on August 24, 2007.
(AR 5.) During that litigation, the Commissioner filed a stipulated motion to reverse and
remand, which the Court granted. (AR 510, 516.) On remand, ALJ Ruth Kleinfield (“the
ALJ”) conducted a hearing at which Craig was represented by counsel and testified on
her own behalf. (AR 584, 587-88.) On October 23, 2009, the ALJ issued a decision,
again finding Craig not disabled under the Social Security Act. (AR 499.) Thereafter,
the Appeals Council found no reason to disturb this decision, rendering it final. (AR
484.) Having exhausted her administrative remedies, Craig commenced this action on
May 5, 2011. (See Doc. 1.)

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ALJ Determination
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity” (“SGA”). 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not
so engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the fourth step requires the ALJ to
consider whether the claimant’s residual functional capacity (“RFC”) precludes the
performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
fifth and final step commands that the ALJ determine whether the claimant can do “any
other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of
proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five,
there is a “limited burden shift to the Commissioner” to “show that there is work in the
national economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is limited,
and the Commissioner “need not provide additional evidence of the claimant’s [RFC]”).
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Employing this sequential analysis, the ALJ first determined that Craig had not
engaged in SGA since March 31, 2004, her alleged onset date. (AR 492.) Next, the ALJ
found that Craig had the severe impairments of degenerative disc disease and an affective
disorder. (Id.) The ALJ, however, concluded that Craig’s irritable bowel syndrome was
not a severe impairment. (AR 493.) Proceeding to step three, the ALJ found that Craig
did not have an impairment or combination of impairments that met or medically equaled
a listed impairment. (Id.) The ALJ then determined that Craig had the RFC to perform
“unskilled light work as defined in 20 CFR 404.1567(b) and 416.967(b) allowing for the
opportunity to sit and stand at will.” (AR 495.) Relying on this assessment, the ALJ
found that Craig was not capable of performing any of her past relevant work. (AR 497.)
Nevertheless, the ALJ decided that there were jobs existing in significant numbers in the
national economy that Craig could perform, considering her age, education, work
experience, and RFC. (Id.) Thus, the ALJ concluded that Craig had not been under a
disability since the alleged onset date of March 31, 2004. (AR 498.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful employment 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 disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
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substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is restricted to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “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); Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Poupore, 566 F.3d at 305.
Although the reviewing court’s role in reviewing the Commissioner’s disability
decision is “quite limited[,] and substantial deference is to be afforded [that] decision,”
Hernandez v. Barnhart, No. 05-9586, 2007 WL 2710388, at *7 (S.D.N.Y. Sept. 18, 2007)
(internal quotation marks omitted), the Social Security Act “must be construed liberally
because it is a remedial statute that is intended to include, rather than exclude, potential
recipients of benefits,” Jones v. Apfel, 66 F. Supp. 2d 518, 522 (S.D.N.Y. 1999);
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981) (“In its deliberations the District
Court should consider the fact that the Social Security Act is a remedial statute to be
broadly construed and liberally applied.”).
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Analysis
I.

Credibility Determination
Craig claims that the ALJ failed to properly evaluate her credibility with regard to

the limiting effects of her impairments. (Doc. 7 at 3.) Contrary to Craig’s assertions,
however, the ALJ’s credibility determination was based on substantial evidence.
It is the province of the Commissioner, not the reviewing court, to “appraise the
credibility of witnesses, including the claimant.” Aponte v. Sec’y of Health & Human
Servs., 728 F.2d 588, 591 (2d Cir. 1984) (internal quotation marks omitted). If the
Commissioner’s findings are supported by substantial evidence, the court must uphold
the ALJ’s decision to discount a claimant’s subjective complaints of pain. Id. (citing
McLaughlin v. Sec’y of HEW, 612 F.2d 701, 704 (2d Cir. 1982)). “When evaluating the
credibility of an individual’s statements, the adjudicator must consider the entire case
record and give specific reasons for the weight given to the individual’s statements.”
SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996). An important indicator of the
credibility of a claimant’s statements is their consistency with other information in the
record, including the claimant’s medical treatment history. Id. at *5-6.
In this case, the ALJ found that Craig’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” but that her “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent” that they contradict the RFC. (AR 496.) The ALJ explained that,
despite Craig’s allegations that she was unable to work due to back pain and depression,
“there is no reliable and consistent evidence of this.” (Id.) Rather, the ALJ remarked:
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“[Craig] leads an active life.” (Id.) Specifically, the ALJ noted and the record
demonstrates that Craig “was able to prepare simple meals, go shopping with others, and
do simple chores[.]” (AR 495; see AR 84, 593, 595.) Furthermore, the ALJ observed
Craig’s ability to remain static throughout the entirety of the administrative hearing,
despite Plaintiff’s claim that she needed to be able to alternate positions between sitting
and standing. (AR 496.)
Contrary to Craig’s claim, the ALJ’s credibility determination was not based
exclusively on Plaintiff’s daily activities. Rather, the ALJ also relied on the medical
evidence of record, and included a detailed summary of Plaintiff’s treatment records and
the relevant medical opinions in his decision. (AR 492-93, 496.) For example, the ALJ
summarized the opinion of treating neurologist Dr. Joseph Corbett, who opined that Craig
could frequently lift or carry 10 pounds, occasionally lift 20 pounds, and could walk or
stand for 2 hours and sit for about 6 hours in an 8-hour workday. (AR 413-14, 496.)
Similarly, the ALJ considered the opinion of treating physician Dr. Daniel Foley, who
opined that Craig could frequently lift or carry 10 pounds, occasionally lift 20 pounds,
and must periodically alternate between sitting and standing during an 8-hour workday.
(AR 420-21, 496.) Next, the ALJ referenced treating psychologist Dr. Joseph Rainville’s
mental functional assessment, which found that Craig could understand short and simple
instructions. (AR 469, 496.) The ALJ accurately noted that, although Dr. Rainville
believed that Craig would be unable to perform jobs entailing detailed instructions, he did
not suggest that she was unable to function otherwise due to her psychological problems.
(See AR 469-70, 496.)
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The ALJ was entitled to consider this medical evidence, as well as Craig’s level of
activity in assessing her credibility. 20 C.F.R. §§ 404.1529(c), 416.929(c). Moreover,
the ALJ’s rejection of Craig’s allegations of symptoms so severe as to prevent her
performance of any type of work was supported by substantial evidence, as discussed
above.
II.

Dr. Corbett’s Opinions
Next, Craig claims that the ALJ erred when she failed to consider the entirety of

treating neurologist Dr. Corbett’s medical opinions and treating records. (Doc. 7 at 6.)
But in fact, Dr. Corbett’s treatment notes—taken as a whole—do not support a finding of
disability. The record contains sixteen documents describing Dr. Corbett’s treatment of
Craig over slightly less than a two year period. (AR 195-97, 199, 201-03, 205, 344, 34647, 349-51, 459-60.) These documents show that, at times, Craig had pain in her hip and
leg (see AR 197, 201, 203, 205), and she had consistent back pain, albeit at varying
levels (compare AR 195, 197 with AR 199). The notes record that epidural injections
administered to Craig had a ranging effect; sometimes relieving the pain, and sometimes
not relieving it. (See AR 195-96, 202.) Dr. Corbett also recorded both negative and
positive straight leg tests on multiple occasions. (See AR 197, 199, 203, 346-47, 349,
459.) During several later examinations, Dr. Corbett noted that Craig had intact strength
and sensation, suggesting that her ailments had somewhat abated. (AR 346-47, 349, 459,
460.) Considering this evidence, Craig’s claim that these documents clearly establish a

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prolonged and debilitating injury is an overstatement.1 Rather, these reports document
varying objective test results and an overall improvement in Craig’s condition over time.
Additionally, Craig contends that the ALJ impermissibly ignored Dr. Corbett’s
standing limitations, which affect her ability to perform light work. (Doc. 7 at 7-8.) In
Dr. Corbett’s functional assessment, he opined that Craig could stand and/or walk “at
least 2 hours in an 8-hour workday.”2 (AR 413.) He further provided that Craig could sit
for “about 6 hours in an 8-hour workday.” (AR 414.) During Craig’s hearing, the
vocational expert (“VE”) testified that there were jobs, both regionally and nationally, for
an individual with an RFC of unskilled light work which allowed for a sit/stand option.
(AR 601.) The expert later explained that an inability to stand six hours in a day would
not affect this conclusion because such a limitation was already contemplated by the
sit/stand option. (AR 602.) As the ALJ found Craig’s RFC to include “the opportunity to
sit and stand at will” (AR 495), it is inaccurate to characterize the RFC as “flawed due to
its failure to acknowledge how the claimant’s standing limitations would affect her ability
to do light work” (Doc. 7 at 7). Rather, the VE’s testimony made clear that the ALJ

1
The Court recognizes that on January 27, 2006, Dr. Corbett opined that Craig was unable to
work. (AR 350.) This opinion as to the ultimate question of disability, however, is owed no deference.
See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (providing that “some kinds of findings – including
the ultimate finding of whether a claimant is disabled and cannot work – are reserved for the
Commissioner. . . . That means that the Social Security Administration considers the data that physicians
provide but draws its own conclusions as to whether those data indicate disability” (citation and internal
quotation marks omitted)). Moreover, Dr. Corbett opined on a later date that Craig possessed the physical
ability to frequently lift and/or carry 10 pounds, stand and/or walk at least 2 hours in an 8-hour workday,
sit for about 6 hours in an 8-hour workday, and lacked any manipulative limitations. (See AR 413-14.) 
2

  Craig claims that Dr. Corbett’s assessment states that she was “only capable” of standing or

walking for two hours. (See Doc. 7 at 8.) But in fact, Dr. Corbett’s statement that Craig could stand
and/or walk “at least 2 hours in an 8-hour workday” indicates a potential to stand and/or walk for more
than 2 hours in an 8-hour workday. (AR 413.)   

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incorporated this limitation into Craig’s RFC by including a sit/stand option. (See AR
602).
For these reasons, the ALJ properly considered the opinions of Dr. Corbett, and
there is no basis to remand on these grounds.
III.

Vocational Expert Testimony
Finally, Craig claims substantial evidence does not support the ALJ’s finding that

she could perform other work. (Doc. 7 at 8.) She argues that the VE’s testimony at the
administrative hearing did not satisfy the Commissioner’s burden at step five because the
VE failed to supply her attorney with data upon request during cross-examination. (Id. at
9.) She also argues that this failure violated her due process rights. (Id. at 12.) For the
following reasons, these claims fail.

As previously summarized, the regulations require the ALJ to determine at step

five whether the claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g),
416.920(g). “In the ordinary case, the Commissioner meets his burden at the fifth step by
resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404,
Subpt. P, App. 2 (1986).” Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (internal
quotation marks omitted). The grids are not conclusive, however, when a claimant has
additional limitations. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (holding that
the grids “may not be controlling [because] the guidelines [cannot] provide the exclusive
framework for making a disability determination” if a claimant “suffered from additional
nonexertional impairments” (internal quotation marks omitted)).  In these cases the
“application of the grid guidelines and the necessity for expert testimony must be
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determined on a case-by-case basis.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986);
see 20 C.F.R. § 404.1566(e) (“If the issue in determining whether you are disabled is
whether your work skills can be used in other work and the specific occupations in which
they can be used, or there is a similarly complex issue, we may use the services of a
vocational expert or other specialist.”).
In this case, the ALJ determined that Craig needed “the opportunity to sit and
stand at will.” (AR 495.) During the administrative hearing, a VE testified that a person
with Craig’s impairments could perform the duties of a cashier, parking lot attendant, or
assembly worker in a factory setting. (AR 601.) The VE explained that her conclusion
did not rely on the Occupational Employment Statistics from the Department of
Employment and Security Service because those numbers were based on the Dictionary
of Occupational Titles (“DOT”)3, which does not incorporate a sit/stand option. (AR
604.) Rather, the VE only considered a percentage of the Occupational Employment
Statistics for the purpose of eliminating the jobs under the DOT that required standing.
(AR 606.)
At the administrative hearing, Craig’s counsel was afforded the opportunity to
cross-examine the VE regarding the basis for her methodology. The VE cited a 2003
study by a rehabilitation professional which concluded that 90% of sedentary, unskilled
jobs allowed a sit/stand option. (AR 605-06.) The VE then testified that, in her expert

3
The DOT provides a narrative description of the duties and responsibilities of each listed job by
job title. The regulations provide that the Commissioner may take administrative notice of the jobs listed
in the DOT. 20 C.F.R. §§ 404.1566(d), 416.966(d); see SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4,
2000) (“The regulations . . . provide that we will take administrative notice of ‘reliable job information’
available from various publications, including the DOT.”).

11 

opinion, this percentage was too large and that a greater reduction was necessary. (AR
606-07.) Craig’s counsel requested a copy of this study, but the VE stated that she only
had a summary of the study. (AR 606.)
Relying on a Seventh Circuit case, Donahue v. Barnhart, 279 F.3d 441 (7th Cir.
2002), Craig argues that a VE must supply documentation supporting her conclusion
during cross-examination and that the VE’s failure to do so here was error. (Doc. 7 at
11.) Recently, in Brault v. Comm’n, No.11-2121, 2012 WL 2477842 (2d Cir. June 29,
2012), the Court of Appeals rejected the argument Craig advances here. Moreover, in
Brault the court concluded that an ALJ was not required to state express reasons for
accepting a VE’s testimony where, as here, the VE’s testimony did not match the job
types in the DOT with other data showing employment numbers. The circuit rejected the
reasoning of Donahue, expressing “doubts about the Seventh Circuit’s approach.” The
circuit reconfirmed the “flexible” substantial evidence approach to disability proceedings.
Id. at 10-11.
Vocational expert testimony must be “based on identifiable statistics” and
“informed by [the expert’s own] expertise and experience,” so as to satisfy the
“substantial evidence” standard applicable in disability proceedings. Palmer v. Astrue,
No. 1:10-cv-151-jgm, 2011 WL 3881024, at *6 (D. Vt. Sept. 2, 2011); see also Ali v.
Astrue, No. 09-cv-166, 2010 WL 502779, at *5 (W.D.N.Y. Feb. 9, 2010) (providing that
“the ALJ needs some evidentiary basis to rely upon the opinions of the vocational
expert”). Courts have also held, however, that a VE is allowed to rely on his or her own
expertise when the DOT does not provide reliable job information for a particular case.
12 

See Irish v. Chater, No. 95-315-B, 1996 WL 211797, at *7 (D. N.H. Feb. 27, 1996) (“An
ALJ uses a vocational expert to provide an opinion, based on his or her expertise, on
complex issues about a claimant’s abilities and job market possibilities that cannot easily
be resolved by reference to manuals.”) (citing 20 C.F.R. §§ 404.1566(e), 416.966(e)); see
also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s recognized
expertise provides the necessary foundation for his or her testimony.”).
Here, the DOT did not provide reliable information for a claimant with Craig’s
RFC of unskilled light work allowing for the opportunity to sit and stand at will. (AR
495.) During her testimony, the VE referenced the 2003 study that adjusted the DOT for
Craig’s limitation, but expressly stated that she did not rely on this study. (AR 604.)
Rather, the VE adjusted the numbers from the 2003 study downward based on her own
expertise, a finding that was to Craig’s benefit because it further reduced the number of
jobs. (Id.) This testimony, therefore, constituted substantial evidence because it was
based on the VE’s expertise and, in fact, worked to Craig’s benefit. See Piekarski v.
Astrue, No. 08-cv-372S, 2009 WL 2992277, at *5 (W.D.N.Y. Sept. 15, 2009) (holding
that a VE’s testimony is acceptable if it is based on verifiable sources and expert’s own
adjustments based on his experience). Accordingly, the Commissioner has satisfied his
limited burden at step five of the sequential analysis.

13 

Conclusion
For these reasons, the Court DENIES Craig’s motion (Doc. 7), GRANTS the
Commissioner’s motion (Doc. 12), and AFFIRMS the decision of the Commissioner.

Dated at Burlington, in the District of Vermont, this 10th day of July, 2012.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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