Cahill v. Social Security Administration, Commissioner

Filing 20

OPINION AND ORDER: The Court DENIES Plaintiff's 11 MOTION to Reverse Decision of Commissioner and GRANTS Defendant's 16 MOTION for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 8/29/2012. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Robin S. Cahill,
Plaintiff,
v.

Civil Action No. 1:11-CV-148

Michael J. Astrue,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
(Docs. 11, 16)
Plaintiff Robin Cahill 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 Plaintiff’s Motion to reverse the Commissioner’s
decision (Doc. 11), and the Commissioner’s Motion to affirm (Doc. 16). For the reasons
stated below, the Court DENIES Cahill’s motion and GRANTS the Commissioner’s
motion.
Background
Cahill was forty-seven years old on the alleged disability onset date of
March 15, 2009. (AR 30, 153.) Cahill completed high school and has taken at least one
additional computer course. (AR 29.) She has been employed in a number of positions,

including caregiver, cabinet maker, cashier, newspaper carrier, and milker. (AR 29, 206.)
Cahill stopped working due to chronic back pain, as well as pain in her right shoulder,
neck, and knees. (AR 30.)
In July 2009, Cahill filed applications for social security income and disability
insurance benefits. (AR 151, 153.) During the administrative hearing, Cahill stated that
she aggravated her right shoulder while working as a caregiver when a patient fell and
pulled on her arm. (AR 32.) Cahill also explained that she left that job in March 2009
when she was found guilty by the Board of Nursing of abuse and neglect after she had a
disagreement with a patient and left work early. (AR 33, 410.) Cahill’s disability
application was denied initially and on reconsideration. (AR 75-99.)
On January 21, 2011, Administrative Law Judge Thomas Merrill (“the ALJ”)
conducted a hearing on Cahill’s application. (AR 25-55.) Cahill, who was represented
by counsel, appeared and testified at the hearing. (AR 27.) On February 3, 2011, the
ALJ issued a decision finding Cahill not disabled under the Social Security Act. (AR
18.) Thereafter, the Decision Review Board selected the ALJ’s decision for review, but
did not do so during the time allowed. (AR 1.) As a result, the ALJ’s decision became
final. (Id.) Having exhausted her administrative remedies, Cahill commenced this
lawsuit on June 14, 2011. (See Doc. 4.)
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
2

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. 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]”).
Employing this sequential analysis, the ALJ first determined that Cahill had not
engaged in substantial gainful activity since March 15, 2009, her alleged onset date. (AR
12.) Next, the ALJ found that Cahill had the severe impairments of degenerative disc
disease, right shoulder bursitis, depression, and status post right knee surgery. (Id.) At
3

step three, however, the ALJ found that Cahill did not have an impairment or
combination of impairments that met or medically equaled a listed impairment. (AR 13.)
The ALJ then determined that Cahill had the RFC to perform “light work,” as defined in
20 C.F.R. § 416.967(b),1 “allowing for occasional pushing, pulling, and overhead
reaching with the right upper extremity; simple and routine three-step tasks performed for
periods up to two hours at a time; and occasional supervised interaction with others.”
(AR 14.) Finally, the ALJ determined that Cahill could perform her past relevant work as
a cashier and newspaper delivery person. (AR 17.) The ALJ proceeded to step five and
alternatively determined, based on the testimony of a vocational expert (“VE”), that other
jobs existed in significant numbers in the national economy that Cahill could perform.
(AR 17-18.) Thus, the ALJ concluded that Cahill had not been under a disability since
the alleged onset date of March 15, 2009. (AR 18.)
Standard of Review
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. §
1

Pursuant to the regulations, “[l]ight work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). The
regulations further provide:
Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these
activities.
Id.

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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
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);
5

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.”).
Analysis
I.

The ALJ’s Consideration of Record Evidence
Cahill claims that the ALJ committed reversible error when he mischaracterized

facts relevant to her medical condition and activities. (Doc. 11 at 17.) Specifically, she
contends that the record evidence demonstrates that she participated in treatment for her
impairments and could only perform minimal activities of daily living. (Id. at 18.) These
claims are unavailing.
A.

Compliance with Medical Treatment Recommendations

In making his step two determination as to impairment severity, the ALJ stated
that Cahill “decline[d] injections and physical therapy” after her right-sided shoulder
bursitis improved in October 2008. (AR 13.) This statement is factually accurate, as the
examination notes of treating physician Dr. Melanie Lawrence provides that “[p]atient
decline[d] injection and physical therapy at this point” despite some continued
discomfort. (AR 330.) The ALJ’s factual finding, therefore, was supported by
substantial evidence.
Cahill argues that the ALJ’s statement oversimplifies the treatment that she did
undergo. (Doc. 11 at 17.) Cahill also suggests that the ALJ impermissibly denied her
disability benefits because of her alleged non-compliance with medical
recommendations. (See id.) The Commissioner’s regulation states, “[i]n order to get

6

benefits, [a claimant] must follow treatment prescribed by [her] physician if this
treatment can restore your ability to work.” 20 C.F.R. § 416.930. There is, however, no
reason to believe that the ALJ denied Cahill benefits based on her refusal of treatment in
this one instance. The record evidence shows that Cahill participated in physical therapy
for her shoulder bursitis from October to December 2008. (AR 304-13.) Additionally,
Cahill received prednisone and a steroid injection. (AR 319, 330.) In his decision, the
ALJ acknowledged that Cahill “suffers from a host of musculoskeletal problems” and
that “[p]rior treatment . . . included medications, physical therapy, chiropractic care, and
exercise.” (AR 12.) Thus, contrary to Cahill’s assertion, the ALJ considered these
various treatments in his decision.
Furthermore, the ALJ observed that Cahill declined this treatment at step two of
the sequential analysis. (See AR 13.) Despite this fact, the ALJ determined that Cahill
suffered from the severe impairments of degenerative disc disease and right shoulder
bursitis. (AR 12.) This finding, therefore, did not negatively affect Cahill’s disability
claim in any way. Rather, the ALJ’s statement appears to have been an accurate
recitation of one discreet fact at an early step of the analysis. Thus, the ALJ did not err in
his consideration of this evidence.
B.

Activities of Daily Living

Cahill contends that “[t]he ALJ overstated and omitted important information
about [her] activities of daily living.” (Doc. 11 at 18.) At step three, the ALJ concluded
that Cahill had no restriction in activities of daily living. (AR 14.) The ALJ noted that
“[t]he record establishes that the claimant is able to perform activities of daily living such
7

as cooking, shopping, and household chores; she is able to drive and use a computer.”
(Id.) The ALJ also considered Cahill’s activities of daily living when making his
credibility determination. He noted Cahill’s ability to “cook simple meals, do light
chores, shop, read, use a computer, and play computer games,” and that she “spends most
of her day sitting and watching television or movies.” (AR 15.) Cahill maintains that
this summary overstates her abilities and omits “important information” about her
activities of daily living. (Doc. 11 at 18.)
In her Function Report, Cahill reported that she was able to dust, vacuum, do
laundry, use the dishwasher, and mop the floors for short intervals. (AR 200.) She also
stated that she fed and cleaned the litter box of her cat. (AR 199.) Cahill reported that
she prepared “quick, easy” meals for fifteen minutes at a time, possessed the ability to
grocery shop every week, and watched movies and television for a total of five hours a
day. (AR 200-02.) At the administrative hearing, Cahill confirmed her ability to perform
household chores, albeit at a slow pace, and grocery shop. (AR 31, 43.) In addition, she
testified that she used a computer to browse the internet and play simple video games.
(AR 46.)
Upon consideration of this record evidence, it is clear that the ALJ accurately
summarized Cahill’s activities of daily living. In particular, the ALJ acknowledged
Cahill’s limitations in cooking meals and performing household chores by characterizing
these activities as “simple” and “light” respectively. (AR 15.) Thus, the ALJ’s factual
conclusions regarding Cahill’s activities of daily living are supported by substantial
evidence.
8

II.

The ALJ’s Credibility Determination
Cahill claims that the ALJ failed to properly evaluate her credibility. (Doc. 11 at

19.) 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 Cahill “does suffer from pain associated with
underlying disc and joint degeneration” and that these “medically determinable
impairments could reasonably be expected to cause the alleged symptoms.” (AR 15.)
Nevertheless, the ALJ concluded that Cahill’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with” the RFC of light work allowing for occasional pushing, pulling, and
overhead reaching with the right upper extremity. (Id.) The ALJ summarized aspects of
Cahill’s testimony pertaining to the intensity of her pain, specifically Cahill’s testimony
that her pain “intensifies with overhead reaching; looking down to read; looking at a
9

computer screen; bending and twisting; lifting more than five pounds; sitting more than
15 minutes; standing more than five minutes; and walking more than 1/2 a mile.” (Id.)
The ALJ also acknowledged Cahill’s purported inability “to grip items such as pens,
eating utensils, and cups.” (Id.) The ALJ noted that despite this testimony, Cahill
indicated that she “does some light household chores, cooking, driving, shopping, and
visiting, she spends most of her day sitting and watching television or movies.” (Id.)
The ALJ explained that the “records show[] the claimant was functioning reasonably
well” and “can effectively perform activities of daily living.” (Id.) As previously
discussed, these summaries accurately characterize the record evidence regarding Cahill’s
activities of daily living. (See AR 31, 43, 46, 200-02.)
The ALJ considered the objective medical evidence, but found that it “falls short
of demonstrating the existence of pain and limitations that are so severe that the claimant
cannot perform any work on a regular and continuing basis.” (AR 15-16.) The ALJ
accurately discussed “unremarkable” studies of Cahill’s spine, “normal” studies of her
right shoulder, and her continued improvement with treatment. (AR 16, 296, 305, 330,
350, 478-79, 501.) The medical records show that Cahill’s lumbar spine and left hip
were “within the range of normal.” (AR 476.) Similarly, Cahill’s lumbosacral spine had
“no acute abnormality” and her right shoulder had “[n]o definite acute abnormality.”
(AR 477-78.) Finally, there was “[n]o evidence of acute fracture or subluxation” of her
cervical spine. (AR 479.)
The ALJ also discussed his observations during the administrative hearing. He
recalled that Cahill “was very active in and out of her seat and ‘stretching the back
10

muscles’” and “demonstrated full range of motion of her arms, legs, hips, back and
neck.” The law is clear that the ALJ may consider such observations in combination with
the objective medical evidence and Cahill’s purported activities of daily living for the
purposes of a credibility determination. See SSR 96-7p, 1996 WL 374186, at *5 (1996);
Schall v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). The ALJ’s decision to do so, therefore,
did not constitute error.
Cahill also claims that the ALJ failed to properly evaluate her subjective evidence
of depression. Despite raising this claim, Cahill does not advance an argument to support
this claim in her brief.
For these reasons, the ALJ’s credibility determination was supported by
substantial evidence and was not contrary to law.
III.

Medical Opinions
A.

Treating Physician Opinion

Cahill claims that the ALJ committed reversible error when he decided not to give
controlling weight to the opinion of her treating physician, Dr. Melanie Lawrence.
Specifically, Cahill contends that the ALJ improperly failed to examine the relevant
factors when considering the opinions of Dr. Lawrence. This claim is unfounded.
“With respect to the nature and severity of [a claimant’s] impairment(s) . . . [t]he
[Social Security Administration] recognizes a treating physician rule of deference to the
views of the physician who has engaged in the primary treatment of the claimant.”
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citations and internal quotation
marks omitted); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Courts have acknowledged,

11

however, that despite this “special respect . . . [these opinions] 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). It is
well settled that the conflicting opinions of other medical experts, including consultative
physicians, “may constitute such [substantial] evidence.” Mongeur v. Heckler, 722 F.2d
1033, 1039 (2d Cir. 1983); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Cahill maintains that the ALJ failed to properly consider factors relevant to the
weight of Dr. Lawrence’s opinion. (Doc. 11 at 22.) If “[a]n ALJ . . . refuses to accord
controlling weight to the medical opinion of a treating physician,” then she “must
consider various ‘factors’ to determine how much weight to give to the opinion.”
Halloran, 362 F.3d at 32. These factors include (1) “the frequency of examination and
the length, nature and extent of the treatment relationship”; (2) “the evidence in support
of the treating physician’s opinion”; (3) “the consistency of the opinion with the record as
a whole”; (4) “whether the opinion is from a specialist”; and (5) “other factors brought to
the Social Security Administration’s attention that tend to support or contradict the
opinion.” Id. (citing 20 C.F.R. § 404.1527(d)(2)).
In his decision, the ALJ considered the opinion evidence of treating physician Dr.
Lawrence within this framework. The ALJ first discussed the extent of the treatment
relationship, acknowledging that Dr. Lawrence had been Cahill’s treating physician since
2005. (AR 13.) The ALJ next examined the record evidence and concluded that Dr.
Lawrence failed to support her opinions as to Cahill’s physical and mental limitations
with objective findings. (AR 16.) The ALJ also determined that certain aspects of Dr.
12

Lawrence’s reports were contradictory. (Id.) The ALJ, therefore, afforded the opinions
of Dr. Lawrence “limited weight.” (Id.)
In November 2010, Dr. Lawrence opined that Cahill could occasionally lift or
carry up to twenty pounds and provided some sitting, standing, and walking limitations.
(AR 504-05.) A majority of these recommendations were boxes checked on a form. See
Halloran, 362 F.3d at 31 n.2 (providing that a “standardized form . . . is only marginally
useful for purposes of creating a meaningful and reviewable factual record” if
unexplained). Despite the form containing additional space for a doctor to “support
[their] assessment” with clinical or medical findings, Dr. Lawrence merely wrote that
Cahill reported the pain. (AR 507.) Dr. Lawrence explained that she “ha[d] not done any
imaging studies on [Cahill] since she had previously gotten her ortho care elsewhere.”
(AR 552.) Rather, Dr. Lawrence’s comments were “based on patient reports, historical
notes and not based on physical exam or imaging.” (Id.) Similarly, on a mental
functional capacity form, Dr. Lawrence provided that her assessment was supported by
“patient reports,” and “frequent job changes as well as [Cahill’s] observed moderately
poor memory in sessions.” (AR 510.) It is clear, therefore, that Dr. Lawrence’s opinions
as to both Cahill’s physical and mental functionality were not supported by objective
medical evidence. See SSR 06-03P, 2006 WL 2329939, at *4 (2006) (providing that an
ALJ may consider “[t]he degree to which the source presents relevant evidence to support
an opinion”).
Additionally, certain aspects of Dr. Lawrence’s notes and opinions are internally
inconsistent. For example, in a mental functional assessment dated November 22, 2010,
13

the Doctor indicated that Cahill had an “extreme” impairment as to her ability to make
judgments on simple work-related decisions, yet merely possessed a “marked” limitation
pertaining to ability to understand and remember complex instructions. (AR 510.)
Furthermore, during a physical exam on that same day, Dr. Lawrence noted that Cahill’s
recent and remote memory was normal. (AR 552.) Nevertheless, Dr. Lawrence
contradictorily provided on her functional assessment that same day that “[p]oor memory
[was] observed.” (AR 509.) It was proper for the ALJ to consider this evidence in
making his determination. 20 C.F.R. § 404.1527(c)(4) (providing that “[g]enerally, the
more consistent an opinion is with the record as a whole, the more weight [the
Commissioner] will give to that opinion”).
Dr. Lawrence’s opinions also conflict with other medical opinions contained in the
record, as discussed below. Accordingly, the ALJ properly considered the relevant
factors when assigning weight to Dr. Lawrence’s treating physician opinion, and did not
err in the weight assigned thereto.
B.

Opinions of Non-Examining Consultants

Cahill also contends that the ALJ’s decision to afford the opinions of nonexamining consultants controlling weight was improper and not supported by substantial
evidence. (Doc. 11 at 22.) For the following reasons, this claim fails.
In his decision, the ALJ accorded substantial weight to the opinions of nonexamining consultant Drs. William Farrell and Leslie Abramson because those opinions
were “consistent with the medical evidence as a whole.” (AR 13.) In many cases, a state
agency consultant’s opinion properly contributes to the substantial evidence in support of
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an ALJ’s RFC determination. See Santos-Sanchez v. Astrue, 723 F. Supp. 2d 630, 638
(S.D.N.Y. 2010) (finding no error in ALJ’s reliance upon state agency consultant’s
opinion). This applies when, as in this case, a consultant’s report is consistent with the
other medical evidence. See Babcock v. Barnhart, 412 F. Supp. 2d 274, 280 (W.D.N.Y.
2006) (“State agency physicians are qualified as experts in the evaluation of medical
issues in disability claims. As such their opinions may constitute substantial evidence if
they are consistent with the record as a whole.”) (Internal quotation marks omitted).
In February 2010, Dr. Farrell opined that Cahill’s ability to understand and
remember detailed instructions was moderately limited, that her ability to carry out
detailed instructions was moderately limited, that her ability to interact appropriately with
the general public was markedly limited, and that her ability to maintain socially
appropriate behavior was moderately limited. (AR 417-18.) Dr. Farrell explained that
despite Cahill’s purported inability to follow instructions, she received a perfect score on
her Mini-Mental Status Examination, indicating a lack of cognitive impairment. (AR
365, 419.) Dr. Farrell also cited screening that revealed no memory impairments. (Id.)
The record shows that examining psychologist Dr. Theodore Williams observed
that “Cahill did not experience difficulty focusing, attending, or concentrating. She also
did not appear confused or present with comprehension deficits.” (AR 365.) Dr.
Williams also stated that Cahill’s “immediate, mid-range and long term memory abilities
were intact. Moreover, the organization and presentation of her thoughts was clear,

15

rationally based and well organized.”2 (Id.) Additionally, psychiatric nurse practitioner
Wendy Berman provided that Cahill’s “thought process and content [was] logical and
coherent.” (AR 413.) Dr. Farrell’s mental functional capacity assessment, therefore, was
consistent with other record evidence.
The ALJ also afforded substantial weight to the opinion of non-examining
physician Dr. Leslie Abramson. (AR 13.) Citing the objective medical evidence, Dr.
Abramson opined that Cahill could stand and/or walk for about 6 hours in an 8-hour
workday and could sit for about 6 hours in an 8-hour workday. (AR 436.) Dr. Abramson
also provided that Cahill could occasionally lift and/or carry 20 pounds and could
frequently lift and/or carry 10 pounds. (Id.) Dr. Abramson concluded that Cahill’s
“[a]llegations [were] only partially credible in that there [were] minimal findings on x-ray
as well as exam to support any further reduction in her RFC. [Cahill] [] indicate[d] that
she cleans, shops, attends church frequently, drives, socializes, etc.” (AR 440.) As
previously discussed, Dr. Abramson accurately summarized the objective medical
evidence and Cahill’s activities of daily living. Furthermore, in September 2009, Dr.
Teresa Fama observed that Cahill’s “widespread pain” was “out-of-proportion to her
physical exam.” (AR 373.) Dr. Lawrence also believed that Cahill could perform
individual activities such as shopping, could walk a block at a reasonable pace on an
uneven surface, could use public transportation, and could prepare simple meals and feed

2

Cahill maintains that the opinions of Dr. Williams are flawed because he mistakenly believed
that Cahill cared for a young child. (Doc. 11 at 21 n.5.) This factual error, however, is irrelevant to Dr.
Williams’s observations regarding Cahill’s mental awareness and memory.

16

herself. (AR 509.) Dr. Abramson’s physical functional capacity assessment, therefore,
was consistent with other record evidence.
Accordingly, the ALJ did not err in affording substantial weight to the opinions of
Drs. Farrell and Abramson. 3
IV.

Ability to Do Any Other Work
Cahill claims that the ALJ’s finding that she could perform other work at step five

of the sequential analysis is not supported by substantial evidence. (Doc. 11 at 25.)
Specifically, she argues that the VE’s testimony is insufficient because the ALJ did not
include the nonexertional limitation “occasional supervised interaction with others” in a
hypothetical question to the VE. (Doc. 11 at 25.) This claim lacks merit.
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). “If a claimant has
nonexertional limitations that significantly limit the range of work permitted by his
exertional limitations, the ALJ is required to consult with a vocational expert.” Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (internal quotation marks omitted).
The ALJ found that Cahill had an RFC to “perform light work . . . allowing for
occasional pushing, pulling, and overhead reaching with the right upper extremity; simple
3

Cahill also contends that a non-examining physician’s opinion cannot constitute substantial
evidence when the consultant failed to examine the entire record. (See Doc. 11 at 22.) In this case, the
non-examining physicians completed their reports on February 18, 2010. (See AR 419.) Later that year,
Cahill had arthroscopic surgery on her right knee to repair a lateral meniscal tear. (AR 503.) Treating
physician Dr. Lawrence also diagnosed Cahill with lumbago and a depressive disorder in November
2010. (AR 551.) The ALJ considered all of this later evidence. (See AR 13.) Moreover, Plaintiff fails to
demonstrate that Drs. Farrell and Abramson’s reports were “significantly compromised” by this lack of
later information. See Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (holding that a non-examining
physician’s opinion was “significantly compromised” when it was based on an incomplete transcript).

17

and routine three-step tasks performed for periods up to two hours at a time; and
occasional supervised interaction with others.” (AR 14.) At step five, the ALJ found
that, given this RFC, there were other jobs that existed in significant numbers in the
national economy that Cahill could perform, considering her age, education, and work
experience. (AR 17.) In making this conclusion, the ALJ relied on the VE’s testimony at
the administrative hearing. (AR 18.) The VE was asked to assume a hypothetical
claimant who “can lift 20 pounds occasionally, 10 pounds frequently, can stand or walk
for 6 hours in an 8 hour work day, and sit for 6 hours in an 8 hour world day, can
occasionally push and pull with her right upper extremity, and occasionally reach
overhead with her right upper extremity.” (AR 49.) Additionally, this hypothetical
claimant had:
[T]he mental ability to handle four plus step detailed instructions, and can,
can retain the understanding and memory for three step instructions. . . .
Can sustain concentration, pace, and persistence for two hours over an eight
hour work period and during a work week. Can manage routine social
interactions, could have limited contact with the general public, and not
have unsupervised contact with vulnerable individuals due to anger
management issues. And she can travel, avoid hazards, adapt to change,
and set goals.
(AR 51.) The ALJ asked the VE whether there were jobs, other than Cahill’s past
relevant work, that such a claimant could perform. (Id.) The VE stated that, in his expert
opinion, there were other jobs that this claimant could perform, including courier, office
mail clerk, office helper, and eyeglass assembler. (AR 50, 52.)
Cahill now maintains that the VE’s testimony is “fatally deficient” because the
ALJ’s hypothetical question does not match the RFC verbatim. (Doc. 11 at 25-26.) A

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VE’s testimony “is only useful if it addresses whether the particular claimant, with h[er]
limitations and capabilities, can realistically perform a particular job.” Aubeuf v.
Schweiker, 649 F.2d 107, 114 (2d Cir. 1981); see also Bradley v. Bowen, 800 F.2d 760,
763 n.2 (8th Cir. 1986) (providing that the Eighth Circuit “has repeatedly held that
vocational testimony elicited by hypothetical questions that fail to relate with precision
the physical and mental impairments of the claimant cannot constitute substantial
evidence to support the [Commissioner’s] decision.”) There is a slight variation between
the nonexertional limitation set forth in the hypothetical question and the RFC. The
hypothetical included “manage routine social interactions, could have limited contact
with the general public, and not have unsupervised contact with vulnerable individuals
due to anger management issues” whereas the RFC states “occasional supervised
interaction with others.” (AR 17, 51.) When comparing this language, it is evident that
the limitations contained in the RFC were included in the limitations set forth in the
hypothetical question.4
As previously discussed, Dr. Farrell opined that Cahill’s ability to interact
appropriately with the general public was markedly limited. (AR 418.) Dr. Farrell also
commented in his functional capacity assessment that Cahill could manage routine social
interactions, but that she had social restrictions and that her contact with the general
public should be limited. (AR 419.) Finally, he provided that Cahill’s anger
management issues required intense supervision if she was required to deal with
4

In actuality, the hypothetical question to the VE contained additional nonexertional limitations
not included in the RFC. Thus, the VE presumably excluded more jobs under this hypothetical than
would have been necessary under the less restrictive RFC.

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vulnerable individuals. (Id.) These limitations are consistent with Cahill’s ability to
drive a vehicle and shop by herself, as well as her admitted argument with a patient at
work. (AR 33, 201, 410.) Thus, the ALJ’s hypothetical question to the VE included
limitations that were reflected in and supported by the record evidence. The VE’s
testimony, therefore, was sufficient because it addressed Cahill’s particular limitations.
See Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983) (explaining that “Aubeuf
and other decisions critical of hypotheticals that ask a vocational expert to assume a
particular . . . capability on the part of the claimant all address situations where there was
no evidence to support the assumption underlying the hypothetical”). Accordingly, the
ALJ’s finding that Cahill could do other work is supported by substantial evidence and
not contrary to law.
In addition, Cahill claims that the ALJ’s finding that she could perform past
relevant work at step four of the sequential analysis is not supported by substantial
evidence. (Doc. 11 at 23.) In support of this claim, Cahill discusses several specific
issues, including duration of employment, specific duties associated with certain
positions not accounted for in the Dictionary of Occupational Titles, and wages not
constituting SGA. (See id. at 24-25.) The Court need not address this claim, however,
because it finds that the ALJ’s alternative finding at step five is supported by substantial
evidence and is not contrary to law. See 20 C.F.R. §§ 404.1520(g), 416.920(g).
Conclusion
For these reasons, the Court DENIES Cahill’s motion (Doc.11), GRANTS the
Commissioner’s motion (Doc. 16), and AFFIRMS the decision of the Commissioner.
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Dated at Burlington, in the District of Vermont, this 29th day of August, 2012.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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