NorthStar v. Social Security Administration, Commissioner

Filing 14

OPINION AND ORDER: The Court DENIES Plaintiff's 8 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 11 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 10/17/2013. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Fox Northstar,
Plaintiff,
v.

Civil Action No. 2:13-CV-12

Commissioner of Social Security,
Defendant.

OPINION AND ORDER
(Docs. 8, 11)
Plaintiff Fox Northstar brings this action pursuant to 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 his application for disability insurance
benefits. Pending before the Court are Northstar’s motion to reverse the Commissioner’s
decision (Doc. 8), and the Commissioner’s motion to affirm the same (Doc. 11). For the
reasons stated below, the Court DENIES Northstar’s motion and GRANTS the
Commissioner’s motion to affirm.
Background
Northstar was fifty-five years old on his alleged disability onset date of
December 16, 2009. He has a bachelor’s degree in history, and has earned credit towards
obtaining a master’s degree in education. (AR 31, 292.) He was in the United States
Navy for approximately four years, and has work experience as a line cook, a

pressman/printer, a railroad worker, and a post-office clerk. (AR 32, 34.) He is divorced,
and has two children and two grandchildren. (AR 292.) He lives with his sister. (AR
46.)
Starting in March 2008, Northstar has had multiple “spells” or blackouts. (AR 33,
207, 293, 296.) His medical providers and examining consultants have been unable to
determine their cause. (AR 293, 296.) In September 2008, Northstar injured his ankle in
a motorcycle accident. (AR 33.) He nonetheless continued working at his post-office
job, which required him to be on his feet for six to eight hours each day, until October
2009, when he accepted a “buy[]out” for health reasons. (AR 33–34, 166, 292.) On a
typical day during the alleged disability period, Northstar cooked, shopped, cut wood,
read the paper, did beadwork (which he later hoped to sell at Native American
gatherings), wrote op-ed articles for an online magazine, and researched his genealogy on
the computer. (AR 42, 44, 45, 292.) He also volunteered to give library tours twice a
week, and occasionally attended Native American gatherings on the weekend. (AR 47,
292.) At these gatherings, Northstar danced for “[m]aybe 10 minutes tops” and then sat
down to do beadwork. (AR 48.) Due to his ankle problems, Northstar has been unable to
do activities—such as hiking, biking, or bowling—which would require him to be on his
feet or use his legs for an extended period. (AR 50; see also AR 56.)
In September 2009, Northstar filed an application for social security disability
insurance benefits, alleging that, starting on September 1, 20091, he has been unable to

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The alleged disability onset date was later changed to December 16, 2009. (AR 29.)

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work due to memory loss caused by seizures; open sores on his hands; foot, leg, and hip
pain related to a broken ankle; and difficulty standing for more than two hours at a time.
(AR 152.) Northstar’s application was denied initially and upon reconsideration, and he
timely requested an administrative hearing. The hearing was conducted on July 20, 2011
by Administrative Law Judge (“ALJ”) Robert Klingebiel. (AR 24–60.) Northstar
appeared and testified, and was represented by an attorney. Northstar’s sister, Serena
Noble, also testified at the hearing.
On July 29, 2011, the ALJ issued a decision finding that Northstar was not
disabled under the Social Security Act from his alleged disability onset date of
September 1, 2009 through his date last insured of December 31, 2010. (AR 10–16.)
Thereafter, the Appeals Council denied Northstar’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner. (AR 1–3.) Having exhausted his
administrative remedies, Northstar filed the Complaint in this action on January 17, 2013.
(Doc. 3.)
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
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
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whether that 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 his or her 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]”).
Employing this sequential analysis, ALJ Klingebiel first determined that Northstar
had not engaged in substantial gainful activity since his alleged disability onset date
through the date last insured. (AR 12.) At step two, the ALJ found that, although
Northstar had the medically determinable impairments of “status post ankle injury and a
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possible seizure disorder,” these impairments were not “severe.” (Id.) Without
proceeding through the remaining steps of the sequential process, the ALJ concluded that
Northstar had not been under a disability during the alleged disability period. (AR 16.)
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
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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);
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
Northstar argues that substantial evidence does not support the ALJ’s step-two
finding that he had no severe impairment(s) affecting his ability to work. (Doc. 8 at 8.)
Specifically, Northstar asserts that the ALJ erred in his analysis of the medical opinions
of agency consultants Drs. Leslie Abramson and Geoffrey Knisely, and in his credibility
determination. The Commissioner disagrees, and claims that the ALJ’s decision is
supported by substantial evidence and complies with the applicable legal standards. For
the reasons stated below, I find in favor of the Commissioner.
I.

The ALJ Properly Assessed the Medical Opinions of the Agency Consultants.
In support of his finding that Northstar did not have a severe impairment, the ALJ

gave “greatest weight” to the opinions of the state agency medical consultants, including
Drs. Abramson and Knisely. (AR 16.) In a February 2010 report, Dr. Abramson
summarized the relevant medical records, including a January 2010 consultation report
prepared by neurologist Dr. Andres Roomet, and concluded that Northstar had “[n]o
medically determinable impairment.” (AR 297.) A few months later, after also
considering Dr. Roomet’s report, Dr. Knisely opined that Northstar may have a seizure
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disorder but the impairment was “not severe.” (AR 313.) The ALJ gave great weight to
these opinions because he found them to be “consistent with the record as a whole.” (AR
16.)
Northstar asserts that the ALJ should not have given so much weight to the
opinions of Drs. Abramson and Knisely for two reasons: first, these providers did not
consider Northstar’s ankle impairment; and second, they did not have all the relevant
medical evidence available to them when they prepared their reports. (Doc. 8 at 12–14.)
It does not appear, however, that these providers neglected to consider Northstar’s ankle
impairment. As noted above, both doctors referred to Dr. Roomet’s January 2010 report
wherein Dr. Roomet recorded that, although Northstar “state[d] that he ha[d] a bad
ankle,” his “station and gait [were] normal.” (AR 288.) Moreover, Dr. Abramson
specifically noted Dr. Roomet’s observation that Northstar’s gait was “normal,” and
concluded that “[n]o physical [medically determinable impairment was] established.”
(AR 297; see AR 288.)
Furthermore, the ALJ reviewed medical evidence submitted after Drs. Abramson
and Knisely completed their reports, including December 2010 X-rays of Northstar’s
ankle, which revealed “unremarkable” results. (AR 15 (citing AR 347).) The ALJ also
noted that a December 2009 MRI “revealed no evidence of acute fracture, but showed
potential for a tendon tear.” (AR 15 (citing AR 321).) Indeed, the MRI report states:
“No significant abnormality.” (AR 314.) These medical records do not indicate the
severity of Northstar’s ankle impairment, and do not suggest that the impairment
functionally limited Northstar.
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Nor does the additional evidence cited by Northstar—much of which was
submitted after Drs. Abramson and Knisely completed their reports—demonstrate that
Northstar’s ankle impairment functionally limited him during the alleged disability
period. For example, Northstar cites a treatment note from Taconic Orthopaedics which
states that his ankle “was placed in an air cast stirrup brace,” but that note is dated
September 10, 2008, over a year before the alleged disability onset date. (AR 317; see
Doc. 8 at 13.) Even assuming this treatment note is relevant to the alleged disability
period, it states that, although Northstar had mild to moderate swelling in his ankle, he
had full range of motion and no instability. (AR 317.) The note does not recommend
surgery or medication, but rather, merely suggests that Northstar start “progressive
weight-bearing on the left lower extremity with the air cast on” and “range of motion
strengthening” to the knee and ankle, refrain from working for two weeks, and return for
reevaluation in four weeks. (Id.) Although a November 2009 treatment note from
Taconic Orthopaedics documents an “[a]ntalgic gait pattern” and limited range of motion
due to ankle pain (AR 319), and 2010 treatment notes from the Veteran’s Administration
medical providers record Northstar’s complaints of chronic left ankle pain and use of an
ankle brace (AR 332–38); other treatment notes state that Northstar exhibited normal
motor power, station, and gait (AR 341), and was “significantly” helped by the ankle
brace (AR 351). Additionally, as discussed above, testing of Northstar’s ankle revealed
essentially normal results. (AR 347.) Where, as here, there is potentially conflicting
medical evidence, it is for the fact-finder to resolve, and the court may not substitute its
judgment for that of the Commissioner. Colling v. Barnhart, 254 F. App’x 87, 88 (2d
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Cir. 2007) (quoting Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)); see also
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (although courts may not accept
“an unreasoned rejection of all the medical evidence in a claimant’s favor,” the
Commissioner need not “reconcile explicitly every conflicting shred of medical
testimony”). In any event, as stated above, none of these medical records shed light on
the severity of Northstar’s ankle impairment. Moreover, as pointed out by the
Commissioner (Doc. 11-1 at 5), the record contains no medical opinion stating that
Northstar’s ankle impairment significantly limited Northstar’s ability to do basic work
activities.
Accordingly, I find that substantial evidence supports the ALJ’s finding that the
opinions of Drs. Abramson and Knisely are consistent with the record, and Northstar’s
claim that the ALJ should not have afforded great weight to these opinions fails.
II.

The ALJ Did Not Err in His Credibility Determination.
Next, Northstar questions the ALJ’s determination that, although Northstar’s

medically determinable impairments could reasonably have been expected to cause the
alleged symptoms, his statements concerning the intensity, persistence, and limiting
effects of those symptoms are “not credible to the extent they are inconsistent with
finding that [Northstar] had no severe impairment or combination of impairments.” (AR
15.) 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). Thus, if the Commissioner’s findings are
supported by substantial evidence, the court must uphold the ALJ’s decision to discount a
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claimant’s subjective complaints. Id. (citing McLaughlin v. Sec’y of Health, Educ., and
Welfare, 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).
Here, the ALJ gave two specific reasons in support of his credibility
determination. First, the ALJ stated that Northstar’s complaints were unsupported by the
objective medical evidence. As discussed above, substantial evidence supports this
statement, as the objective medical evidence does not demonstrate that Northstar’s ankle
impairment was severe. The ALJ’s reliance on this evidence was proper, as the
regulations provide that, in determining the intensity and persistence of a claimant’s
symptoms, the ALJ must consider “all of the available evidence,” including “signs and
laboratory findings, and statements from . . . your treating or nontreating source . . . about
how your symptoms affect you.” 20 C.F.R. § 404.1529(c)(1).
Second, the ALJ properly considered Northstar’s extensive daily activities in
determining whether his statements concerning the intensity, persistence, and limiting
effects of his symptoms were credible. Specifically, throughout the decision, the ALJ
accurately noted that Northstar’s activities included swimming, cutting wood to heat his
cabin, volunteering to give library tours, cooking, driving, running errands, doing
beadwork, occasionally attending and dancing at Native American gatherings, writing a
column in an online magazine, working on the computer, and managing his finances.
(AR 14–15, 25, 42–50, 292.) It was proper for the ALJ to consider Northstar’s ability to
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engage in these activities in assessing the credibility of his complaints of ankle pain. See
Calabrese v. Astrue, 358 F. App’x 274, 278 (2d Cir. 2009) (citing 20 C.F.R. §
404.1529(c)(3)) (“in assessing the credibility of a claimant’s statements, an ALJ must
consider . . . the claimant’s daily activities”). It was also proper for the ALJ to consider
that Northstar continued to work for approximately one year after his September 2008
ankle injury, even though his job required him to be on his feet for six to eight hours each
day. (AR 14, 34, 166, 211.)
Northstar faults the ALJ for stating that “[Northstar] has alleged that his
impairments prevent him from sustaining work in any capacity.” (AR 15 (emphasis
added); see Doc. 8 at 10.) The argument fails. Although it would have been more
accurate for the ALJ to have stated that Northstar has alleged his impairments limit his
ability to work such that he is eligible for disability benefits, the statement did not affect
the ALJ’s decision in any meaningful way.
I therefore find that the ALJ did not err in determining that Northstar was not
entirely credible. See Stanton v. Astrue, 370 F. App’x 231, 234 (2d Cir. 2010) (“We have
no reason to second-guess the credibility finding . . . where the ALJ identified specific
record-based reasons for his ruling.”).
Conclusion
For these reasons, the Court DENIES Northstar’s motion (Doc. 8), GRANTS the
Commissioner’s motion (Doc. 11), and AFFIRMS the decision of the Commissioner.

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Dated at Burlington, in the District of Vermont, this 17th day of October, 2013.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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