Heagney-O'Hara v. Commissioner of Social Security

SUMMARY ORDER Petitioner-Appellant Judith Anne Heag-ney-O’Hara, proceeding pro se, appeals from the district court’s judgment granting a motion on the pleadings in favor of Respondent-Appellee, the Commissioner of Social Security. Heagney-O’Hara seeks disability insurance benefits for the relevant period of March 9, 2001 through March 31, 2003, for injuries sustained from a slip-and-fall accident. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. When reviewing disability determinations made by the Commissioner, we conduct a plenary review of the administrative record, Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447 (2d Cir.2012), and may only set aside the Commissioner’s decision if the factual findings are not supported by substantial evidence or if the decision is based on incorrect legal standards, Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000). Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008) (internal quotation marks and citation omitted). Liberally construing Heagney-O’Hara’s submissions on appeal, see Wright v. C.I.R., 571 F.3d 215, 219 (2d Cir.2009), we read her brief as raising four arguments: 1) the district court misunderstood the relevant time period; 2) the Administrative Law Judge (“ALJ”) improperly considered Heagney-O’Hara’s decision not to pursue surgery; 3) the ALJ’s residual functional capacity (“RFC”) determination is not supported by substantial evidence; and 4) the ALJ erred at steps four and five of the five-step sequential evaluation for the adjudication of disability claims, see 20 C.F.R. § 404.1520. 1. Relevant Time Period Heagney-O’Hara asserts that the district court' misunderstood the relevant time period, pointing to the court’s 1) use of the term “can” instead of “could” when referring to Heagney-O’Hara’s ability to perform her past relevant work, and 2) reference to the medical opinion of Dr. Toor, dated February 25, 2011. To the extent that these statements in the district court’s opinion reflect a misunderstanding of the relevant time period, such misunderstanding was harmless. The district court properly applied the correct legal standard, concluding that the ALJ’s findings were supported by substantial evidence. In doing so, the court carefully reviewed the evidence on which the ALJ relied, including statements by Heagney-O’Hara, Dr. Goldman, Dr. Tesser, Ivy Green, and the vocational expert. Although the court referenced Dr. Toor’s 2011 examination, it did so only to note that the examination played no role in the ALJ’s analysis. Meanwhile, any inconsistency in verb tense was similarly not meaningful. This argument is therefore meritless. 2. Decision Not to Pursue Surgery Heagney-O’Hara next argues that the ALJ improperly considered her deci *126 sion not to pursue surgery when making his credibility determination. This argument is likewise meritless. 1 An ALJ is required to consider a variety of factors when assessing a claimant’s credibility, including whether the claimant has received treatment, other than medication, to relieve her symptoms. See 20 C.F.R. § 404.1529(c)(3)(v). Thus, it was entirely proper for the ALJ to consider Heagney-O’Hara’s decision not to pursue surgery when assessing her credibility. 3. RFC Determination Heagney-O’Hara also contests the ALJ’s RFC determination. She asserts that her arm took longer than five months to heal and required ongoing therapy; that Dr. Tesser’s medical opinion should have been given greater weight; and that the ALJ erred in discrediting her claim of total disability. In making an RFC determination, the ALJ must consider all relevant medical and non-medical evidence of record. See 20 C.F.R. § 404.1545. Where a claimant’s symptoms are not supported by objective medical evidence, they must be analyzed in accordance with several factors, including the claimant’s daily activities; duration and frequency of pain; medication; and treatment. See id. § 404.1529(c)(3); Medical opinions are weighed according to, inter alia, the length, nature, and extent of the treating relationship, if any; the consistency of the opinion with the record as a whole; the physician’s specialty; and other relevant factors. Id, § 404.1527(c). Here,- the ALJ recognized that Heag-ney-O’Hara suffered from a restricted range of motion and underwent extensive physical therapy. Nonetheless, the ALJ concluded that her allegation of total disability was not credible based on the fact that she suffered a fracture to her right arm but was left-hand dominant; her treatment was routine and conservative; she admitted that she did not have much trouble using her right hand and could lift a gallon of milk; and her range of motion improved with physical therapy. In • so concluding, the ALJ gave little weight to the opinion of Dr. Tesser, finding that, although he was a rheumatologist, he was friends with Heagney-O’Hara and lacked a treating relationship with her. The ALJ also noted that Dr. Tesser failed to describe Heagney-O’Hara’s limitations with sufficient specificity. Meanwhile, the ALJ gave great weight to the opinion of Dr. Goldman. Even though Dr. Goldman also lacked a treating relationship with Heag-ney-O’Hara, his opinion regarding Heag-ney-O’Hara’s healing progress and ability to use her hand was consistent with the objective medical evidence in the record. In light of these findings, we conclude that the ALJ’s RFC determination was supported by substantial evidence. 4. Step Four and Step Five Analysis Finally, Heagney-O’Hara maintains that she was unable to perform either her past relevant work as an administrative assistant, as determined at step four of the evaluation process, or the alternative positions identified by the vocational expert, as determined at step five. *127 At step four, a claimant bears the burden of showing that she cannot perform her past relevant work. See Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004). Here, Heagney-O’Hara indicated that her past work as an administrative assistant was performed while seated, involved extensive typing, and required frequent lifting of less than ten pounds and occasional lifting of at most twenty pounds. She testified that, although she could not raise her arm, she did not have much problem using her right hand, could button her blouse and drive her car, and was capable of lifting a gallon of milk. These statements, along with the opinions of Dr. Goldman and the vocational expert, supported the ALJ’s conclusion that Heagney-O’Hara could perform light work in a seated position with frequent but not constant fingering, handling, and reaching. Heag-ney-O’Hara has failed to meet her burden of proving otherwise. At step five, the burden shifts to the Commissioner to establish that the claimant can perform other gainful work available in the national economy. Id The Commissioner ordinarily satisfies this burden by introducing the testimony of a vocational expert. Id at 384. This was done here, and Heagney-O’Hara does not challenge that fact on appeal. Accordingly, we find no error with the ALJ’s analysis at either step four or step five of the sequential evaluation process. We have considered Heagney-O’Hara’s remaining arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court. Footnotes [1] We assume, without deciding, that Heag-ney-O’Hara’s failure to raise this argument below did not constitute waiver. See Miller v. Comm'r of Soc. Sec., 409 Fed.Appx. 384, 387 (2d Cir.2010) (summary order) (assuming ar-guendo that pro se claimant did not forfeit arguments by failing to raise them before district court); cf. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009) (observing that, "at least where the claimant is represented by counsel before the district court, the claimant must present the relevant legal arguments in that forum in order to preserve them for appellate review”).