Cragin v. Social Security Administration, Commissioner

Filing 7

OPINION AND ORDER: The Court DENIES Plaintiff's 5 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 6 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 7/12/2013. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Brenda Cragin,
Plaintiff,
v.

Civil Action No. 2:12-CV-259

Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 5, 6)
Plaintiff Brenda Cragin brings this action under 42 U.S.C. § 405(g) of the Social
Security Act, requesting review and remand of the decision of the Commissioner of
Social Security (“Commissioner”) denying her application for disability insurance
benefits. Pending before the Court are Cragin’s motion to reverse the Commissioner’s
decision (Doc. 5), and the Commissioner’s motion to affirm the same (Doc. 6). For the
reasons stated below, the Court DENIES Cragin’s motion and GRANTS the
Commissioner’s motion.
Background
Cragin was thirty-six years old on her alleged disability onset date of
June 17, 2005. She has a high school education, and has worked as a cashier, a
receptionist, an administrative assistant, and an insurance broker. She has also engaged
in collections and customer service work at Fletcher Allen Health Care. She is married,

and has three children who are approximately sixteen, eighteen, and twenty-one years
old.
In 2005, Cragin was a passenger in a vehicle that was rear-ended while stopped at
a stop sign. She subsequently developed neck, shoulder, spine, and hip pain. She
underwent multiple surgeries to address these and other medical problems, including
carpal tunnel syndrome in both wrists. Cragin claims these surgeries provided only
temporary relief, due in part to a fall in 2007, which set back her recovery. Also around
that time, she began experiencing severe pain and burning in her joints, muscles, and
nerves. In September 2009, she was diagnosed with lupus, a disease that causes joint
pain or swelling and muscle pain. In November of that year, she was diagnosed with
diabetes mellitus. Eventually, Cragin’s condition progressed to include shaking,
dizziness, difficulty swallowing, and dehydration. Medical records from 2009 and later
reflect that Cragin suffered from uncontrolled joint pain and stiffness, spinal degeneration
including lumbar degenerative disc disease and disc herniation, rashes, headaches, and
depression. Narcotic pain medication, which had previously reduced the severity of her
pain, was no longer effective and resulted in sedation. In updated social security
disability forms, Cragin advised that, in October 2009, January 2010, and April 2010,
respectively, her pain, fatigue, and other symptoms increased in severity, resulting in a
substantial decrease in her ability to function. (AR 193, 219.)
In September 2009, Cragin protectively filed applications for Supplemental
Security Income (“SSI”) and social security disability insurance benefits (“DIB”) for the
period beginning on June 17, 2005 (the “alleged onset date”) and ending on
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December 31, 2008 (the “date last insured”). In her DIB application, Cragin alleged that,
starting on June 17, 2005, she has been unable to work due to lupus, degenerative disc
and back problems, arthritis, fibromyalgia, headaches, depression, and other conditions.
(AR 171.) She explained that she suffers from extreme fatigue, constant pain and
inflammation, swollen hands and knees, nausea, dizziness, and headaches. (Id.) She
stated that she “just tr[ies] to get through a day,” and can no longer do many activities
including watching her son’s football games, cooking, or cleaning. (Id.)
Cragin’s SSI and DIB applications were denied initially and upon reconsideration,
and she timely requested an administrative hearing. The hearing was conducted on
July 5, 2011 by Administrative Law Judge (“ALJ”) Paul Martin. (AR 41-63.) Cragin
appeared and testified, and was represented by an attorney. A vocational expert also
testified at the hearing. On August 23, 2011, the ALJ issued a decision finding that
Cragin had not been disabled under the Social Security Act during the period between
June 17, 2005, her alleged onset date, and December 31, 2008, her date last insured; but
has been disabled under that Act beginning on September 14, 2009. (AR 21-34.)
Thereafter, the Appeals Council denied Cragin’s request for review, rendering the ALJ’s
decision final. (AR 1-3.) Having exhausted her administrative remedies, Cragin filed the
Complaint in this action on November 20, 2012. (Doc. 1.)
ALJ Decision
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
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gainful activity.” 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 ALJ is required to determine the
claimant’s residual functional capacity (“RFC”), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines 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, ALJ Martin first determined that Cragin had
not engaged in substantial gainful activity since her alleged onset date of June 17, 2005.
(AR 24.) At step two, the ALJ found that Cragin had the following severe impairments
since June 17, 2005: degenerative disc disease, bilateral carpal tunnel syndrome, right
ulnar subluxation, left shoulder impingement and arthrosis, fibromyalgia, and obesity.
(Id.) The ALJ further found that, beginning on September 14, 2009, Cragin had the
additional severe impairments of lupus with Sjögren’s syndrome and diabetes mellitus.
(Id.) Conversely, the ALJ found that Cragin’s depression and anxiety were non-severe.
(AR 24-26.) At step three, the ALJ found that none of Cragin’s impairments, alone or in
combination, met or medically equaled a listed impairment. (AR 27.)
Next, the ALJ determined that, prior to September 14, 2009, Cragin had the RFC
to perform “light work,” as defined in 20 C.F.R. § 404.1567(b), “except that she could
only occasionally climb, balance, stoop, kneel, crouch, or crawl.” (AR 28.) Given this
RFC, the ALJ found that Cragin was unable to perform any of her past relevant work.
(AR 32.) Finally, using Rule 202.21 of the Medical-Vocational Guidelines (“the Grids”)
as a framework, the ALJ determined that, considering Cragin’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national
economy that Cragin could have performed prior to September 14, 2009. (AR 32-33.)
The ALJ concluded that Cragin had not been under a disability from the alleged onset
date through the date last insured. (AR 33-34.)

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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. §
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 considering a Commissioner’s disability decision, the court “review[s] 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). The court’s factual review of
the Commissioner’s decision is thus limited 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); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the fact[-]finder.”). “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);
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Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the
Social Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
I.

Cragin’s Non-Exertional Impairments
Cragin argues that the ALJ failed to properly consider the extent of Cragin’s non-

exertional impairments, including her reaching limitations, chronic pain, and required
absences from work due to multiple surgeries. Cragin further suggests that the ALJ erred
in finding that Cragin was not fully credible. The Commissioner disagrees, asserting that
the ALJ’s decision should be affirmed because it is supported by substantial evidence.
A.

Reaching Limitations

In finding that Cragin was not limited in her ability to reach during the insured
period, the ALJ relied on the opinions of non-examining agency consultants Dr. Pisanelli
and Dr. Abramson, who each found no reaching limitations. Specifically, in December
2009, Dr. Pisanelli found that Cragin suffered no limitation in her ability to reach in any
direction, including overhead. (AR 748.) And in April 2010, Dr. Abramson made the
same finding. (AR 795.) Although generally the opinions of non-examining consultants
are less valuable than those of treating physicians, the opinions of non-examining agency
consultants may override those of treating physicians when the former are supported by
the record and the latter are not. See SSR 96-6p, 1996 WL 374180, at *3 (1996) (“In
appropriate circumstances, opinions from State agency . . . consultants . . . may be
entitled to greater weight than the opinions of treating or examining sources.”); 20 C.F.R.
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§ 404.1527(e)(2)(i) (state agency medical consultants are “highly qualified physicians . . .
who are also experts in Social Security disability evaluation”). Here, the record supports
the opinions of Drs. Pisanelli and Abramson, as discussed below.
Moreover, despite her claims to the contrary, even the treating physician opinions
do not support Cragin’s argument. Dr. Lawlis, who treated Cragin’s shoulders and wrists
during the relevant period, acknowledged that Cragin had reaching limitations but stated
that he did not believe Cragin was unable to work. (AR 280.) Rather, Dr. Lawlis opined
that Cragin “does have a capacity to work.” (Id. (emphasis added).) In October 2008,
Dr. Lawlis reported that Cragin’s surgeries appeared to have been mostly successful, and
opined that she would “be able to regain some more motion as time goes by.” (AR 251.)
Cragin herself told treating providers that her surgeries were successful. (See, e.g., AR
249 (“doing very well until she fell”), 275 (“felt [left carpal tunnel release] was quite
successful”), 292 (“no complaints about her carpal tunnel release and she finds that to
have essentially cured her problem”), 304 (“very happy with [carpal tunnel release]
surgery”), 570 (reporting that “right ulnar transposition surgery . . . was successful”).)
Cragin points out that her treating primary care physician, Dr. Amy Savoy, opined
that she could reach only occasionally. (Doc. 5 at 5.) But that opinion was made in July
2011, over two years after Cragin’s date last insured, and after Cragin’s condition had
deteriorated. (AR 1204, 1207.) The ALJ thus correctly stated that Dr. Savoy’s opinion
regarding Cragin’s physical functioning was “inapplicable to th[e relevant] period” and
“inconsistent with [the] treatment record prior to September 2009.” (AR 31.) The ALJ
further explained that Dr. Savoy’s opinion regarding Cragin’s reaching limitations was
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related to Cragin’s lupus, which was not a medically determinable impairment prior to
September 14, 2009. (Id. (citing AR 1202).) The medical record supports this
explanation, and reflects that it was not until September 2009 that Cragin was diagnosed
with lupus. (AR 711-12.) In August 2009, less than a month earlier and nearly eight
months after the date last insured, Dr. Chi Chi Lau, Cragin’s treating rheumatologist,
stated in a treatment note that Cragin had “no clinical signs or symptoms on exam or by
history to support a diagnosis of systemic lupus or any other autoimmune condition.”
(AR 426.)
B.

Chronic Pain

Cragin also claims that the ALJ erred in failing to consider her chronic pain. But
the ALJ explicitly discussed this issue, finding that Cragin’s chronic pain was effectively
treated with medication during the insured period. (AR 29; see AR 414 (“patient has
been well controlled on MS-Contin”), 424 (“[c]hronic pain issues have improved since . .
. switched . . . to MS-Contin”), 547 (“taking Percocet . . . with reasonably good pain
control”), 1183 (pain control improving, “able to wean [Percocet] down nicely).) Cragin
herself reported to a medical provider in August 2009 that she had “overall
improvement” in her chronic pain symptoms, and that MS-Contin was “very successful”
at controlling those symptoms. (AR 414.) More than a year earlier, in February 2008,
Dr. Lawlis reported that, according to Cragin, the “main pain” that she experienced prior
to shoulder surgery was “essentially gone.” (AR 280.) Approximately two years before
that, in January 2006, Cragin reported to another medical provider that her pain was
“mostly gone,” and that she took tramadol only “when her shoulder flare[d] up,” which
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occurred “with activity,” such as bowling. (AR 356.) A day earlier, she told a different
medical provider that she had “90% sustained relief” of her left-sided shoulder pain, with
“only occasional flare-ups.” (AR 358.) The provider stated:
[Cragin] is doing quite well following two cervical epidural steroid
injections. She has been doing well with a series of trigger point injections
and is showing continued improvement after each procedure. . . . I do not
feel that cervical medial branch blocks are indicated at this point since she
is showing such significant improvement.
Id.
C.

Work Attendance Problems Arising from Multiple Surgeries

Cragin next claims that the ALJ erred in failing to consider her work attendance
problems which arose from her multiple surgeries in one year. The record indicates,
however, that Cragin’s relevant surgeries occurred on only three dates in the years 2007
and 2008. (See AR 249, 267, 306.) Her first surgery appears to have been on her left
shoulder and left wrist in October 2007 (AR 306), her second was on her right wrist in
July 2008 (AR 267), and her third was on her right elbow in October 2008 (AR 249).
Cragin has not presented evidence or persuasive argument demonstrating that these
surgeries would have caused work attendance issues to the extent that she would have
been unable “to engage in any substantial gainful activity . . . for a continuous period of
not less than 12 months,” which is required to meet the statutory requirement of being
“disabled” under the Social Security Act. 42 U.S.C. § 423(d)(1)(A). In fact, Cragin
herself characterized her shoulder and wrist surgeries as “day surgeries” in a social
security disability form. (AR 176.)

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D.

Credibility

Cragin makes a fleeting assertion that the ALJ erred in his assessment of Cragin’s
credibility. But the ALJ properly considered the entire case record and gave specific
reasons in support of his determination that Cragin’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were “not credible prior to
September 14, 2009.” (AR 28.) See SSR 96-7p, 1996 WL 374186, at *4 (1996) (“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.”). After discussing the relevant medical evidence, particularly the records
documenting the success of Cragin’s 2007 and 2008 surgeries, the ALJ accurately stated
that “the treatment record simply does not support [Cragin’s] allegations of fully
disabling pain during this period.” (AR 30.)
The ALJ also noted “isolated references of work activity” during the insured
period. (Id.) Specifically, in March 2007, nearly two years after the alleged disability
onset date, Cragin reported to a medical provider that she was still working. (AR 333.)
The report states: “[Cragin] is self-employed in the property . . . and building
management business where she does . . . clerical work and works on a laptop.” (Id.)
Moreover, in October 2007, shortly after her first surgery, Cragin stated that she had
stopped working but was planning to return to work in approximately three months. (AR
299.) Approximately four months later, in February 2008, Cragin told a medical provider
that she had continued to work as a homemaker and for the family business at home.
(AR 280.) Almost a year later, in January 2009, Cragin reported to a medical provider
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that, despite being under “multiple stressors” including “chronic pain,” she still had been
“able to continue with her work.” (AR 568.) Considering these references to work
activity in conjunction with the medical record, the ALJ reasonably concluded as follows:
[T]hese reports are consistent with the objective medical evidence
establishing sufficient physical functioning for work during th[e insured]
period. Moreover, even if [Cragin] did not actually work for the family
business at the time, her work “as a homemaker” suggests that she retained
significant physical functioning.
(AR 30 (citing AR 568).) It was proper for the ALJ to consider this evidence in
determining whether Cragin was able to work during the relevant period.1 See 20 C.F.R.
§ 404.1571 (“Even if the work you have done was not substantial gainful activity, it may
show that you are able to do more work than you actually did.”); Williams v. Chater, 923
F. Supp. 1373, 1379 (D. Kan. 1996) (“Evidence of employment during a period of
alleged disability is highly probative of a claimant’s ability to work.”). The ALJ’s
findings regarding Cragin’s credibility are supported by substantial evidence, and thus are
entitled to great deference. See Pietrunti v. Dir., Office of Workers’ Comp. Programs,
119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to great
deference and therefore can be reversed only if they are patently unreasonable”)
(quotation omitted); Matejka v. Barnhart, 386 F. Supp. 2d 198, 205 (W.D.N.Y. 2005)
(ALJ’s “evaluation of a claimant’s credibility is entitled to great deference if it is
supported by substantial evidence”).

1

The ALJ also could have considered that Cragin was able to engage in at least a few exerting

activities during the relevant period: In December 2005, she was planning to drive to Florida for the
holidays (AR 363); in February 2006, she was bowling “[a]gain” (AR 355); and in May 2006, she was
scrubbing floors (AR 350).

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II.

Medical-Vocational Guidelines (“the Grids”)
Finally, Cragin argues that the ALJ should have consulted with a vocational expert

regarding the non-exertional impairments discussed above, instead of relying on the
Grids to determine that jobs existed in significant numbers in the national economy that
Cragin could perform prior to September 14, 2009. As discussed above, however, the
ALJ did not err in failing to account for any limitations caused by these impairments in
Cragin’s RFC, and thus he was not required to account for these limitations in assessing
Cragin’s ability to work under the Grids. See Selian v. Astrue, 708 F.3d 409, 421-22 (2d
Cir. 2013) (holding that, where ALJ declined to find claimant’s testimony about his pain
credible, there was no error in ALJ concluding that pain did not deprive claimant of a
meaningful employment opportunity, and thus ALJ could rely on the Grids and was not
required to obtain the testimony of a vocational expert). The ALJ also was not required
to use a vocational expert before finding that Cragin could perform work existing in the
economy. The Second Circuit has held that “the mere existence of a nonexertional
impairment does not automatically require the production of a vocational expert.” Bapp
v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). Rather, it is only in cases where “a
claimant’s nonexertional impairments significantly diminish his ability to work–over and
above any incapacity caused solely from exertional limitations–so that he is unable to
perform the full range of employment indicated by the [Grids]” that the ALJ must
introduce the testimony of a vocational expert (or other similar evidence) that jobs exist
in the economy which claimant can obtain and perform. Id.

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Here, the ALJ determined that, prior to September 14, 2009, although Cragin’s
ability to perform the full range of light work was “impeded by additional limitations”
(AR 33), including an ability to climb, balance, stoop, kneel, crouch, and crawl “only
occasionally” (AR 28), these limitations “had little or no effect on the occupational base
of light work” (AR 33). The ALJ explained that: “While [Cragin’s] additional limitations
preclude the performance of the full range of light work, the[y] . . . leave the light and
sedentary occupational bases virtually intact.” (Id.) Cragin has failed to demonstrate
otherwise, and the applicable authority supports this finding. See SSR 85-15, 1985 WL
56857, at *6 (1985) (“Where a person has some limitation in climbing and balancing and
it is the only limitation, it would not ordinarily have a significant impact on the broad
world of work.”); SSR 83-14, 1983 WL 31254, at *2 (1983) (“to perform substantially all
of the exertional requirements of most sedentary and light jobs, a person would not need
to crouch and would need to stoop only occasionally”); SSR 85-15, 1985 WL 56857, at
*7 (“If a person can stoop occasionally . . . in order to lift objects, the sedentary and light
occupational base is virtually intact.”); Frustaglia v. Sec’y of Health & Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987) (“It is fairly obvious that . . . a restriction [of only
occasional bending] would have very little effect on the ability to perform the full range
of work at either the light or sedentary level.”); Program Operations Manual System
(“POMS”) DI 25020.005.A.4.b (“Limitations in kneeling and crawling, in themselves,
would have very little impact on the sedentary, light[,] and medium occupational
bases.”). Therefore, the ALJ was not required to account for these “additional
limitations” in analyzing Cragin’s ability to work under the Grids, and was not required
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to consult a vocational expert in performing that analysis. See Britt v. Astrue, 486 F.
App’x 161, 164 (2d Cir. 2012) (citing Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir.
2010)).
Conclusion
For these reasons, the Court DENIES Cragin’s motion (Doc. 5), GRANTS the
Commissioner’s motion (Doc. 6), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 12th day of July, 2013.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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