Brugman v. Comm'r of Soc. Sec.

MERLE BRUGMAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

15 Civ. 7276 (PKC) (GWG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 9, 2017

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Merle Brugman brought this pro se action to review a final decision of the Commissioner of Social Security denying Brugman supplemental security income and disability insurance benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).¹ Despite being given several opportunities to do so, Brugman has not made any submissions opposing the motion.

I. BACKGROUND

A. Procedural History

Brugman filed for disability benefits on September 25, 2012. See Administrative Record, filed Mar. 18, 2016 (Docket # 11) ("R."), at 103-12. The Social Security Administration ("SSA") denied Brugman's application on November 29, 2012. R. 71-77. Brugman requested a hearing before an Administrative Law Judge ("ALJ"). R. 79-80. A hearing was held on December 12, 2013. R. 29-46. In a February 25, 2014, decision, the ALJ found that Brugmanwas not disabled. R. 25. Brugman requested review of the ALJ's decision, see R. 12-13, and on April 10, 2015, the Appeals Council denied that request, making the ALJ's determination the Commissioner's final decision, R. 6-9. Brugman brought this civil action on September 14, 2015, to review that final decision.

B. The Hearing Before the ALJ

At the hearing before the ALJ, Brugman, who was not represented, testified that she became disabled in November 2011. See R. 34. Brugman had worked for a Macy's department store up until that time period. See R. 34-36.² After leaving her employment with Macy's, Brugman looked for a job "working in a shelter or a pantry" until March 2012, while also receiving unemployment payments. R. 36-37. She earned "a little money" at the end of 2012 working for the City of New York's Board of Elections. See R. 34-35.

Brugman said she had no history of drug or alcohol abuse, but admitted to using marijuana in the past. R. 37-38. Brugman testified that she had hammertoe surgery "in the early 90s." R. 38. At the time of the hearing, Brugman continued to use Tramadol for back and knee pain. Id. Tramadol produced no side effects, though the efficacy of its pain reduction varied. Id. Brugman took Lisinopril for hypertension, though she stated it did not control her hypertension because at "appointments . . . [her] pressure seem[ed] . . . higher than . . . normal." See id. Brugman's doctors had recently prescribed her a higher dose of Lisinopril. See R. 38-39.

Brugman took Ventolin for her asthma, which she needed help with "more than ever now." R. 39. Brugman's prescribed asthma medication varied in its ability to control herasthma-related symptoms. Id. Whereas Brugman at one time could "walk maybe like two blocks without breathing [problems]," at the time of the hearing she could only "walk a block [before she had] to stop because [she] need[ed] to [use her asthma] pump." See id.

Brugman attributed her inability to work to her difficulty in walking, drowsiness induced by her medications, and her back pain. See R. 39-40. Brugman also said that her asthma limited her ability to work because "everywhere is crowded, everywhere and stuff like that [makes it] hard to breathe." See R. 40. Unrelated to her asthma, Brugman's "fingers get cramped and they'll stay like that." Id.

As to her back pain, Brugman testified it was "unbearable" and was worst when she bent or stretched. See id. To alleviate the pain, Brugman took Tramadol and "Tylenol COD number 3." R. 40-41. Brugman would take three Tylenol per week and they made her "feel relaxed." R. 41. Brugman said she could sit for three hours in an eight-hour workday and stand for one hour. See id. Brugman could not estimate how many pounds she could lift, but stated that she could lift a gallon of milk. Id. On an average day, Brugman said she would wake up, take her medication, eat something, and try to walk for exercise. R. 41-42. When she walked for exercise, she could only walk half a block. R. 42. Brugman said she was "using [her asthma] pump more than ever now." See id.

Brugman also testified about a semi-hysterectomy she had on May 17, 2013. R. 43-44. The reason for her semi-hysterectomy was that Brugman had a pre-cancerous cyst "on the fibroid." R. 44-45. This cyst had apparently caused her to have back pain over a two-year period, resulting in emergency room visits. Id.

C. Medical Evidence

The medical evidence in the record is described accurately in the Commissioner's brief. See Def. Mem. at 4-13. We discuss the evidence relevant to our conclusions in Section III below.

D. The ALJ's Decision

The ALJ denied Brugman's application for benefits in a written decision on February 25, 2014. R. 14-25. The ALJ found that Brugman had a "severe combination of impairments," including "asthma, obesity, hypothyroidism, plantar fasciitis, and an unspecified impairment of the back." R. 19. Nonetheless, the ALJ found that Brugman did not have an "impairment or combination of impairments that [met] or medically equal[ed] the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)." R. 19-20. The ALJ noted that none of Brugman's physicians had "indicated clinical signs or diagnostic findings that me[t] or [were] comparable to the severity requirements of a listed impairment." R. 20.

The ALJ found that Brugman maintained the "residual functional capacity to perform light work . . . including occasional stooping and occasional exposure to respiratory irritants." Id. The ALJ found that Brugman could "stand or walk for six of eight hours in a work day, frequently lift and carry objects weighing 10 pounds, occasionally lift and carry up to 20 pounds, push/pull to her lifting/carrying capacity, and balance and ambulate on level surfaces without an assistive device." Id. The ALJ explained this conclusion through an extensive review of Brugman's medical history (discussed further below). R. 20-24.

In light of the finding regarding her residual functional capacity, the ALJ found that Brugman was "capable of performing her past relevant work as a sales attendant, store cashier,and hotel clerk." See R. 24-25. Thus, the ALJ found that Brugman was not under a disability, as defined by the Social Security Act, from November 22, 2011, to the date of the decision. R. 25.

II. GOVERNING LAW

A. Scope of Judicial Review Under 42 U.S.C. §§ 405(g) and 1383(c)

A court reviewing a final decision by the Commissioner "is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); accord Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000)); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."); id. § 1383(c)(3) ("The final determination of the Commissioner of Social Security . . . shall be subject to judicial review as provided in section 405(g) . . . ."). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Selian, 708 F.3d at 417; Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).

"Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (internal quotation marks omitted) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)). Thus, "[i]f the reviewing court finds substantial evidence to support theCommissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); accord McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) ("If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.") (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)). The Second Circuit has characterized the "substantial evidence" standard as "a very deferential standard of review — even more so than the 'clearly erroneous' standard." Brault, 683 F.3d at 447-48 (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)). "The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Id. at 448 (emphasis in original) (internal quotation marks omitted) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). "The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision." Johnson, 563 F. Supp. 2d at 454 (internal quotation marks omitted) (quoting Hernandez v. Barnhart, 2007 WL 2710388, at *7 (S.D.N.Y. Sept. 18, 2007)).

B. Standard Governing Evaluation of Disability Claims by the Agency

The Social Security Act defines the term "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has...