Opinion
04 Civ. 2450 (SAS).
April 22, 2005
Christopher James Bowes, Esq., Center for Disability Advocacy Rights, Inc., New York, NY, for Plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, Susan C. Branagan, Special Assistant United States Attorney, New York, NY, for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Jacquelyn Brown brings this action pursuant to the Social Security Act ("SSA"), seeking judicial review of a final decision by the Commissioner of Social Security ("the Commissioner") denying her claim for Social Security disability benefits. The Commissioner now moves for judgment on the pleadings, and Brown has cross moved for the same relief. For the reasons set forth below, the Commissioner's motion is granted and Brown's cross-motion is denied.
II. BACKGROUND
A. Procedural Background
Brown filed an application with the Social Security Administration for disability insurance benefits on December 16, 1996, alleging that she was disabled since September 1986. After her application was denied, Brown requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held on July 28, 1998. Brown, represented by counsel, appeared and testified at the hearing. On October 28, 1998, the ALJ issued a decision finding that Brown had not been disabled at any time through December 31, 1991, the date when her insured status expired. Specifically, the ALJ found that while Brown suffered from allergic rhinitis and asthma, which prevented her from returning to her past job as a correction officer, she could still perform light work provided that she avoided working around "environmental irritants and in hazardous conditions."
See Transcript of Administrative Record filed as part of the Commissioner's Answer pursuant to 42 U.S.C. § 405(g) ("Tr."), at 80-82.
See id. at 80.
See id. at 44-54.
See id. at 14.
See id. at 69-76. In order to qualify for Social Security disability benefits, Brown had to establish that she was disabled no later than the date on which she was last insured which, in her case, was December 31, 1991. See id. at 236.
Id. at 75.
Brown appealed the October 1998 decision, but the Appeals Council denied her request for review. Brown next sought judicial review of the ALJ's decision by filing a civil action. The court remanded the case to the Commissioner for further administrative proceedings on the ground that the October 1998 decision did "not contain sufficient rationale with specific references to evidence of record in support of assessed limitations."
See id. at 5-6.
Id. at 234.
A supplemental hearing was held on April 28, 2003. Brown was again represented by counsel. Raymond Cestar, a vocational expert, testified at the hearing. The ALJ again denied Brown's claim, finding that Brown had the residual functional capacity to perform light work with "no concentrated exposure to chemicals, dust, fumes, or extremes of heat and cold. . . ." The ALJ also determined that even if Brown could not work as a correction officer, her past work as an office clerk and accounts clerk were not precluded by her residual functional capacity. This became the final decision of the Commissioner when the Appeals Council denied Brown's request for review on December 27, 2003. This action now follows.
See id. at 344.
See id. at 371-90.
Id. at 227.
See id.
See id. at 215-19.
B. Brown's Personal History
Brown was born in Virginia on September 12, 1946. She is a high school graduate with some college education. Brown worked as a clerk for the New York City Department of Finance from January 1969 to May 1972, and then worked as an accounts clerk at the Department of Health from May 1972 to January 1978. Brown started working as a correction officer for the New York City Department of Corrections in 1978. She retired from the Department of Corrections on disability in 1986.
See id. at 85.
See id. at 135. Brown asserts that she "is a high school graduate with one and one-half years of college." Memorandum of Law in Support of Plaintiff's Cross-Motion for a Judgment on the Pleadings ("Pl. Mem."), at 2. However, the Commissioner's motion indicated that she finished two years of college. See Memorandum of Law in Support of Defendant's Motion for a Judgment on the Pleadings ("Def. Mem."), at 3.
See Tr. at 98.
See id. at 362.
C. Brown's Testimony with Respect to Her Disability
Brown claimed that her sensitivities to soap, detergents, and cleaning solutions began in 1983. Brown also claimed that she had been unable to work since September 25, 1986, because of shortness of breath, itchiness of the hands and feet, depression, psychological problems, blurry vision and urticaria. She explained that these conditions kept her from working because sometimes she did not feel well, felt very depressed, and was sick much of the time.
See Pl. Mem. at 2. Brown claims that when she worked as a correction officer, she experienced generalized itching all over her body, with visible hives over her chest, back, buttocks, arms and face. As a result, she also experienced teary eyes. See id. Prison physicians speculated that a disinfectant used at the prison caused the reaction and told her to avoid noxious stimuli. See Tr. at 267.
See id. at 118. Urticaria is a condition characterized by the eruption of papules or wheals on the skin associated with severe itching. See Def. Mem. at 3 n. 3 (citing Taber's Cyclopedic Medical Dictionary 1957 (16th ed. 1989) ("Taber's")). This condition is also referred to as hives or nettle rash. See id.
See Tr. at 118. Because Brown did not receive continuous treatment for any mental disorder from 1986 to 1991, when her insured status for Social Security Disability expired, she only discusses her environmental limitations based on allergies. See Pl. Mem. at 4 n. 1. Therefore, I need not consider her claim of a mental disorder.
Brown testified that she felt better after she stopped working in 1986. In 1998 and 2003, Brown described her symptoms of shortness of breath in areas such as subways or buses, but reported that such symptoms were relieved by drinking water, eating a mint or using a nasal spray. She also reported that her vision occasionally became blurry, but this did not interfere with her reading or watching television.
See Tr. at 25.
See id. at 25-29.
See id. at 36.
Brown testified that she avoids traveling due to her symptoms of allergy and shortness of breath. She stated that the "only environment I had control over was my own environment, where I lived. . . . I can't control environments except my own." She testified that when exposed to other environments, she would unexpectedly experience reactions without any warning signs. Brown stated that in 1991, she was still experiencing attacks two to three times a week. She testified that she had to stay close to home so that she could lie down to take her medication, Benadryl and Atarax, which, in turn, made her drowsy for a couple of hours. Brown also testified that she could not perform any other types of jobs because of uncertainty about allergens in other environments over which she had no control.
See id. at 26, 28, 365, 367.
Id. at 29, 31.
See id. at 30.
See id. at 32.
See id.
See id. at 34.
D. Medical Evidence of Allergies
1. Mt. Sinai Records
On April 21, 1983, Brown complained to Mt. Sinai Hospital that she suffered from "hives several times weekly since 1980." She explained that she was certain that her condition was due to exposure on the job. She reported that she had not experienced hives since being on medical leave, except for one instance when she had returned to work. On examination, there were no urticarial skin lesions. It was recommended that she change her job situation.
Id. at 184.
See id.
See id.
2. Dr. Jeffrey Daniels
On January 13, 1988, Dr. Daniels reported that he had been treating Brown for her allergies since August 20, 1984. In August 1984, Dr. Daniels ordered an IGE-RIA test which revealed that Brown suffered from allergies. Additional allergy testing revealed allergies to dust, dust mites, ragweed, cockroaches, and trees. On October 9, 1984, Dr. Daniels reported that Brown experienced severe allergic reactions to harsh chemicals and insect sprays that were used in the prison where she worked. Dr. Daniels suggested that Brown be assigned to an area with no exposure to these chemicals or, alternatively, that she be retired on a medical disability. A report prepared by Dr. Daniels on March 17, 1985 indicated that Brown had experienced a "severe reaction" including asthma and allergic rhinitis since August 1984 following exposure to caustic agents in the work environment. Her symptoms included wheezing, shortness of breath, coughing, itching, teary eyes, and welts. On January 13, 1988, Dr. Daniels reported that Brown's exposure to prison laundry detergents triggered an allergic reaction with severe rhinitis, itching, and hives.
See id. at 171.
See id. at 168.
See id. at 169, 173.
See id. at 172.
See id.
Id. at 162.
See id.
See Pl. Mem. at 5.
2. Dr. Barnes
In 1988, Dr. Barnes performed a physical examination of Brown which revealed that her conjunctiva were slightly infected; there were no skin lesions; and her lungs were clear. Dr. Barnes concluded that Brown had a permanent partial disability based on the review of the record and this examination.
The conjunctiva are the mucous membranes that line the eyelids. See Def. Mem. at 6 n. 4 (citing Taber's, at 403).
Dr. Barnes was hired by the New York State Workers' Compensation Board to perform the examination. See Tr. at 206.
See id.
3. Dr. Nirou
Dr. Nirou examined Brown on October 17, 1990. He reported that Brown had very dry skin around her neck and slight chronic dermatitis, pigmentation and dryness of the fingers and hands which were caused by recent exposure to chemicals. Brown's lungs produced coarse sounds on auscultation with normal expansion of the chest; her heart showed a normal sinus rhythm; and her nose was slightly congested. Based on the history and review of the medical record and this examination, Dr. Nirou indicated that Brown had a permanent partial disability.
Dr. Nirou, like Dr. Barnes, was hired by the New York State Workers' Compensation Board to perform the examination. See id. at 205.
See id.
See id.
See id. Brown also mentioned Dr. William Hermance. See Pl. Mem. at 5-6. Brown began seeing Dr. Hermance in May 1997. She reported that her symptoms occurred intermittently and they included mild dyspnea. Dr. Hermance conducted intradermal testing, which revealed an allergic reaction to tree pollen, house dust mites, cockroach antigen, and a severe reaction to ragweed pollen. See Tr. at 186, 192, 200-203. Dr. Hermance's records are largely irrelevant to this case because the issue here is whether Brown had been disabled before December 12, 1991, while Dr. Hermance only reported Brown's situation after 1997.
4. Medical Records from the New York City Department of Corrections
From December 1982 to September 1983, Brown frequently complained of and reported a generalized body itch. Examinations showed that urticaria was noted over Brown's body, usually on her arms, chest and other parts of her body including her back, face, and buttocks. At least once, generalized urticaria covered her entire body except her face. Progress notes reveal that Brown was allergic to disinfectant and the detergents inmates used on their clothes. It was suggested that she be transferred from the correctional facility.
See Tr. at 264-68. During that period, Brown complained nine time of various allergic reactions.
See id. at 265.
See id. at 266.
See id.
In September 1983, Brown was moved to a new job location and was reportedly symptom free. However, in November 1983, Brown reported an allergy attack while working at this new location. She complained of swollen arms and legs. Her situation remained unchanged from December 1983 to March 1984. In April 1984, Brown was out sick because of scratching and hives, but examination revealed no evidence of hives. In July 1984, Brown continued to have allergic attacks with urticaria no matter what area of the correctional facility she worked in. She complained of symptoms every time she entered the facility. In August 1984, Brown reportedly experienced increased itching upon arriving at the clinic. She was observed constantly rubbing her eyes and scratching her scalp.
See id. at 270.
Brown said she was allergic to foods, but testing performed in November 1984 reportedly revealed that she did not have food allergies. See id. at 188.
See id. at 271.
See id. at 272-73.
See id. at 274.
See id. at 275.
See id. at 276.
In October 1984, Brown was denied a medical disability leave because her treating physician reported that she could return to work as long as she did not work in areas affected by the chemicals which caused her to react. This included the areas where the inmates were housed. In February 1985, Brown was transferred back to the facility where she originally worked and was placed on the sick list because she was unable to work in areas where she might be exposed to chemicals. In February 1985, Brown presented with asthmatic bronchitis and a note from Dr. Daniels in which he advised her not to return to work. Also, Brown complained that she could not perform any light duty work in any jail setting due to chemicals which caused marked asthma and itching. On examination, the correctional facility's physician noted that Brown did not have any symptoms two hours after arriving at the correctional facility.
See id. at 277.
See id. at 277-78.
See id. at 278.
See id. at 279. The records also showed that Brown "is manifesting no symptoms of response" while she was sitting in an area where the same chemicals were used for cleaning as in the prison. Id.
In May 1985, Brown continued to complain of allergic symptoms and she also complained that the Atarax used to treat her allergies made her drowsy. On examination, there was no evidence of an allergic reaction. It was recommended that she be placed on active duty provided that she work in well-ventilated areas and not be exposed to chemicals. An outdoor post would satisfy this condition.
See id. at 280-81.
In January 1986, Brown was placed on a leave of absence based on her physician's recommendation that she not work due to allergic reactions. In October 1986, the New York City Department of Corrections retired her.
See id. at 164. That recommendation noted that since "January 3, 1981, [Brown had] been unable to function in a correctional facility due to an allergic reaction to the chemicals used in said facilities." Id. at 166. It also noted that Brown had "been on medically monitored status assigned to non-correctional facilities where these chemicals were not used . . . [Brown's] allergic attacks occur upon reassignment to correctional facilities. The attacks occur immediately necessitating [Brown's] removal from said assignment. . . ." Id.
See id. at 163.
E. Vocational Evidence
Raymond Cestar, a vocational expert, attended and testified at the supplementary hearing. Cestar testified that Brown's past work as an office clerk, as it is usually performed, is considered exertionally light. Cestar also testified that Brown's previous job as an accounts clerk involved only sedentary exertion. Cestar further testified that Brown's past work as a correction officer was semi-skilled and involved medium exertion.
See id. at 372-79.
See id. at 373. Light work involves sitting and standing or walking for up to six hours a day, lifting up to ten pounds frequently and never more than twenty pounds. See Def. Mem. at 8 (citing 20 C.F.R. § 405.1567(b); Social Security Ruling 83-10, 1983 WL 31251, at *5-6).
See Tr. at 374. Sedentary work involves sitting for about six hours a day, standing or walking on and off for a total of two hours a day, and lifting small items such as files, ledgers and small tools; it never involves lifting more than ten pounds at a time. See Def. Mem. at 9 (citing 20 C.F.R. § 405.1567(a); Social Security Ruling 83-10 at *5).
See Tr. at 374. Medium work involves frequent lifting of up to twenty-five pounds and lifting a maximum of fifty pounds at a time. See Def. Mem. at 9 (citing 20 C.F.R. § 405.1567(c); Social Security Ruling 83-10 at *6).
The ALJ asked Cestar whether an individual of Brown's age, education and work experience, who was capable of performing the exertional requirement of sedentary, light and medium work but must avoid concentrated exposures to chemicals, dust, fumes and temperature extremes, would be able to perform any of Brown's past relevant work. Cestar testified that such an individual would be able to preform both the office clerk job and the accounts clerk job.
See Tr. at 374.
See id. at 374-75.
Cestar further testified that even if the lack of any computer skills would hinder Brown's ability to perform both of her past clerical jobs, she nonetheless would be able to perform several other jobs that exist in significant numbers in the national economy. These jobs include security guard, ticket seller and bagger. In total, there are approximately 20,000 such jobs in New York City and approximately 665,000 nationally.
See id. at 378.
See id.
See id.
III. LEGAL STANDARD
A district court must not disturb the Commissioner's decision if it is based on correct legal principles and supported by substantial evidence. It is not the court's function to determine de novo whether a claimant is disabled; rather, it is the court's function to set aside the Commissioner's decision if it is based on legal error or is not supported by substantial evidence in the record as a whole. If a court finds that there is substantial evidence supporting the Commissioner's determination, that decision must be upheld, even if there is also substantial evidence supporting the plaintiff's position.
See Balsamo v. Chater, 142 F. 3d 75, 79 (2d Cir. 1998).
See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
The term "substantial evidence" has been defined by the Supreme Court as "`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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
See Alston v. Sullivan, 904 F. 2d 122, 126 (2d Cir. 1990). Moreover, the Commissioner's findings of fact, as well as the inferences and conclusions drawn from those findings, are conclusive even in cases where a reviewing court's independent analysis of the evidence might differ from the Commissioner's analysis. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
For purpose of disability insurance eligibility under the SSA, a person is disabled when she is unable "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." A claimant's impairment must be of "such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." The Supreme Court has recently made clear that it is the inability to engage in substantial gainful activity, not merely the medical condition, that must last for a continuous period of at least twelve months in order for the individual to be found disabled.
See Barnhart v. Walton, 535 U.S. 212, 217-22 (2002).
In evaluating the severity of an impairment, an ALJ must consider a claimant's subjective symptoms. An individual's subjective complaints, however, do not alone establish disability. Rather, there must be a medically determinable impairment that could reasonably be expected to produce the symptoms. Furthermore, an ALJ is not required to accept the claimant's subjective complaints without question. The ALJ may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence in the record. In doing so, the ALJ must set forth his or her reasons for discounting the claimant's subjective complaints "`with sufficient specificity to enable [the court] to decide whether the determination is supported by substantial evidence.'"
See 20 C.F.R. § 416.929; McLaughlin v. Secretary of Health, Educ. and Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).
See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
See id.
Toro v. Chater, 937 F. Supp. 1083, 1086 (S.D.N.Y. 1996) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1987)).
The Social Security Administration has promulgated a five-step procedure for evaluating disability claims. The Second Circuit has summarized this process as follows:
See 20 C.F.R. § 404.1520.
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Accord Chico v. Schweiker, 710 F.2d 947, 950-52 (2d Cir. 1983).
The Second Circuit has also set forth the burdens of proof at the various steps of this process. The claimant bears the initial burden of showing that her impairment prevents her from returning to her previous job. If she meets that burden, the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering her physical and mental capacities, her age, her education, and her experience and training.
See Berry, 675 F.2d at 467.
See id.
IV. DISCUSSION
There is no dispute between the parties as to the first three steps of ALJ's determination. The ALJ determined that Brown had asthma and allergies, impairments that were considered "severe" based on the requirements in the regulations. Despite such impairments, the ALJ found that Brown had the residual functional capacity to perform her past jobs as an office clerk and accounts clerk. In her cross-motion, Brown claims that the ALJ erred in finding that her environmental limitations are "concentrated exposure to chemicals, dust, fumes, extremes of heat and cold. . . ." Brown further contends that the ALJ did not properly credit Brown's subjective complaints and based his decision on the flawed opinion of a vocational expert.
Pl. Mem. at 15 (citing Tr. at 225, 374).
See id. at 16-18.
A. Extent of Brown's Environmental Limitations
Relying on Dominguez v. Sullivan and Richards v. Secretary of Health and Human Services, Brown argues that because she can only tolerate a minimal exposure to irritants, she is disabled for the purpose of the SSA. However, neither Dominguez nor Richards is binding authority in this circuit. Unlike Dominguez, where the court found that very little exposure to irritants may be disabling, the ALJ here found that Brown's environmental restrictions prohibit "concentrated exposure to chemicals, dust, fumes, extremes of heat and cold." What Brown cannot tolerate is not "very little" exposure, but "concentrated" exposure to irritants.
No. 91 Civ. 7529, 1992 WL 133014, * 6-8 (N.D. Ill. May 29, 1992).
884 F. Supp. 256, 259 (N.D. Ohio 1995).
This Court must then determine whether the ALJ's finding that Brown can tolerate "not concentrated" exposure to irritants is supported by substantial evidence. Brown argues that the ALJ failed to properly address the scope of her documented sensitivities to soaps, detergents, cleansers, dust, dust mites, ragweed, cockroaches, and trees. Although Dr. Daniels' test in 1984 revealed that Brown was allergic to dust, dust mites, ragweed, cockroaches, and trees, there is little or no evidence supporting the proposition that between 1986 and 1991 Brown's allergic attacks were caused by elements other than those used in the prison, or were caused by little exposure to chemicals. Also, Brown testified that her symptoms gradually improved after she stopped working. The ALJ noted that the records do not show that Brown required hospitalization or emergency room treatment for her allergies. The ALJ also noted that Brown had been treated conservatively, and no evidence of diagnostic testing showed a respiratory condition.
See Pl. Mem. at 14-15.
See Tr. at 157-77, 184-89, 205-11, 261-85. Dr. Hermance's testing revealed that Brown had a severe allergic reaction to ragweed. However, as noted earlier, this test is irrelevant to the issue of whether Brown was disabled before December 1991 because Dr. Hermance started treating Brown after 1997.
See id. at 25, 31-33.
Furthermore, despite the testimony that Brown experienced symptoms upon reentering the prison facility for the purpose of seeing the facility physician, medical evidence showed that Brown did not have any symptoms two hours after she arrived at the correctional facility. After Brown was assigned to an area where there was no concentrated contact with chemicals, an examining physician noted on September 8, 1983 that she was symptom-free. Brown continued to see this physician during her sick leave, but he specifically reported that symptoms of allergic reaction were not observed. Therefore, the ALJ's finding regarding the extent of Brown's environmental restrictions is supported by substantial evidence.
See id. at 278.
See id. at 270.
See id. at 272.
B. Brown's Subjective Complaints
Brown asserts that the ALJ's finding should be overturned because the ALJ failed to provide any analysis of Brown's subjective complaints of environmental sensitivity that prevented her from going outside. However, when the evidence of record permits a court to comprehend the rationale of an ALJ's decision, it is not necessary that the ALJ has "mentioned every item of testimony presented to him or [has] explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability."
See Pl. Mem. at 18-19. Brown's complaints include: that she cannot go out because the only environment she can control is her own home; that she does not visit her friends because she is afraid of being exposed to allergens; and that she has to stay close to home so that she can return to take her medication, which makes her drowsy for several hours.
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Accord Berry, 675 F.2d, at 469. In Berry, the Second Circuit noted in that while a reviewing court could remand for further findings or a clearer explanation where it is "unable to fathom the ALJ's rationale in relation to evidence in the record," the court need not remand "where [it is] able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence." Id. See also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) ("Notwithstanding the apparent inconsistency between the reports of [two doctors], we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony. . . .").
Here, the ALJ's finding that Brown's allegations regarding her limitations are not totally credible is supported by substantial evidence. In spite of the ALJ's silence on some of Brown complaints, the ALJ assessed Brown's subjective complaints as a whole. The ALJ explicitly considered Brown's complaint that she had an allergic reaction to the chemicals used in the jails. The ALJ also considered Brown's testimony that, during the relevant period, she had no problems walking, sitting, standing, pushing, or pulling. More importantly, the ALJ addressed in detail Brown's alleged mental disorders which, according to Brown, contributed to her inability to go outside. Furthermore, Brown's assertions of her subjective pain were inconsistent with her prior testimony.
Brown was diagnosed with anxiety, agoraphobia and depression in 1999. After that diagnosis, she testified that she would "get panicky" on public transportation. Tr. at 380. She stayed in as she was "accustomed to being in, and when [she] could go out, [she] really didn't want to a lot of the times." Id. at 385.
Brown testified at the first hearing that she stayed at home as much as possible because she experienced shortness of breath on buses or at other people's homes due to her allergies and/or asthma. See id. at 28. After she was diagnosed with anxiety, she explained that her limitations were due to her psychological problems. See id. at 385-86.
Moreover, the ALJ's rejection of Brown's disability assertion was not conclusory. Instead, the ALJ specifically identified the basis on which he reasoned that Brown's symptoms were not disabling. Having done so, it is not necessary for the ALJ to address "every item" of Brown's testimony and to explain why he considered "particular evidence unpersuasive or insufficient."
See id. at 226.
Mongeur, 722 F.2d at 1040.
Even if the omission of the ALJ is an error, this error is harmless and does not justify a remand because there are little or no objective findings that demonstrate a medical impairment which could reasonably be expected to produce the symptoms alleged. No evidence shows that Brown was subjected to frequent allergic attacks when she went out or visited her friends except her subjective concern that she would become allergic if she did so. The reported attacks of allergies after Brown retired were rare, at best. The report of Dr. Hermance, the only physician mentioned by Brown who treated her after her retirement, did not reveal any occasions where Brown suffered a severe allergic attack simply because she went outside or visited her friends.
See Davis v. Callahan, No. 96 Civ. 9367, 1997 WL 438772, at *12 (S.D.N.Y. Aug. 4, 1997) (finding the ALJ's failure to state her reasons for discounting the opinions of the non-examining physicians to be harmless error when the result would be the same regardless of whether the ALJ credited those opinions).
Brown describes no such evidence in her memorandum of law. See Pl. Mem. at 4-10.
See Tr. at 186, 192, 200-03.
C. Vocational Expert's Testimony
Based on the vocational expert's testimony, the ALJ found that Brown had the residual functional capacity to perform her past jobs of office clerk and accounts clerk. The ALJ also found that Brown could perform the jobs of security guard, ticket seller, and bagger.
The Commissioner may fulfill her burden of showing that a claimant has the residual capacity to perform her past work by "introducing the testimony of a vocational expert." Brown argues that the vocational expert's testimony fails to distinguish the atmospheric conditions found in her job as a correction officer from those found in the positions of an office worker and accounts clerk. Therefore, according to Brown, the vocational expert's testimony is inconsistent with the description of the Dictionary of Occupational Titles ("DOT"), an official publication of the Department of Labor. Brown argues that because, according to DOT, the environmental conditions of a correction officer are the same as those of an office clerk or an accounts clerk, and because she has been found unable to perform her job as a correction officer, she should also be unable to perform the job of an office clerk or an accounts clerk.
Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986).
See Pl. Mem. at 16-17.
According to the DOT, the relevant environmental factors of extreme heat or cold, atmospheric conditions, and exposure to toxic or caustic chemicals are not present in any of these three workplaces.
In Jasinski v. Barnhart, the Second Circuit clarified its ruling in Mimms v. Heckler, holding that "in certain circumstances, an ALJ may rely on an expert's opinion, notwithstanding a conflict with [the DOT], when the opinion is adequately supported by evidence." Therefore, a mere discrepancy between the expert and the DOT does not warrant a remand.
341 F.3d 182 (2d Cir. 2003).
750 F.2d 180 (2d Cir. 1984). In Mimms, the vocational expert testified before an ALJ that the claimant could perform sedentary work, but then identified jobs that would have required the claimant to perform light work. The Second Circuit remanded the case for further proceedings on the ground that the Commissioner failed to demonstrate the existence of substantial sedentary employment opportunities. This case, unlike Mimms, does not involve a mistake of the classification and description of the jobs that Brown could performed.
Jasinski, 341 F.3d at 183.
Here, the discrepancy, if there is any, does not represent a real "conflict". As the Jasinski court recognized, a specific previous job a claimant performed is not always consistent with the DOT's description, which is based on general observations and statistics of the national economy. Here, although the DOT indicates that chemicals are not present in the working environment of a correction officer in the general sense, evidence revealed that chemicals are present in the prison where Brown worked. Thus, the DOT is not contrary to the specific evidence in this case.
See id. at 185 (noting that in deciding whether the claimant is able to preform her past job separate evaluations of the previous specific job and the job as it is generally performed are required).
Medical records provided by the New York City Department of Corrections indicate that Brown was allergic to the chemicals that were used in the prison including disinfectant and detergent. See Tr. at 266.
V. CONCLUSION
Because the ALJ's finding that Brown has the residual functional capacity to perform her past jobs as an office clerk and accounts clerk is supported by substantial evidence, the Commissioner's motion is granted and Brown's cross-motion is denied. The Clerk of the Court is directed to close these motions [# 9 and 15] and this case.
SO ORDERED.