Brown v. Barnhart

Jan 12, 2006
1:04-cv-00019
Reporters:
,
Before:
Richard W. Roberts

MEMORANDUM OPINION

Plаintiff Lisa Brown filed a complaint seeking to reverse the decision of the Social Security Administration (“SSA”) denying her claims for Disability Insurance Benefits and Supplemental Security Income. Brown moved for a judgment of reversal, arguing that the SSA’s final administrative decision is not supported by substantial evidence and is erroneous as a matter of law. The SSA filed a motion for judgment of affirmance in support of the administrative decision. Because the agency’s final administrative decision is supported by substantial evidence, the SSA’s motion for judgment of affirmancе will be granted and Brown’s motion for judgment of reversal will be denied.

BACKGROUND

I. FACTUAL BACKGROUND

Lisa Brown is a forty-one-year-old woman living in Washington, D.C. with her two minor children. (Administrative Record (“AR”) at 24, 323, 328.) She attended Howard University for two years, was later employed as a word processor for two years, and then was employed as a Postal Service mail distribution clerk until November 2000 when she was terminated. (AR at 95, 136, 323-25.) Five months before her termination, on May 5, 2000, Brown injured her back when she slipped and fell while in a grocery store. (AR at 328-29.) After a trip to the emergency room, she was diagnosed with back strain. (AR at 330.)

Brown’s pain persisted, and she was examined by a chiropractor, Dr. Enid Cruise, on May 9, 2000. (AR at 199-201, 331.) Dr. Cruise determined that Brown had moderately restricted cervical motion, moderate tenderness in the paracervical region, sharp cervical aching, and marked parathoracic and paralumbar tenderness as well as discomfort and a limited range of motion in other areas in her extremities.1 Brown’s sensation in her upper extremities, however, appeared to Dr. Cruise to be intact. (AR at 200.) Brown made a series of visits to Dr. Cruise through June 6, 2000 for treatment of her ailments.2 (AR at 201-37.)

Dr. Cruise’s final report stated that Brown had “reached maximum medical improvement.” (AR at 236.)

On August 16, 2000, Brown visited Dr. Ta’aat Maximous who performed an orthopaedic examination. (AR at 148-49.) Dr. Maximous noted tenderness in Brown’s back and discomfort in her range of motion, but he concluded that Brown did not “have any physical disabilities that [could] prevent her from active daily living activities.”3 (AR at 149.) Brown visited Dr. Michael Langelle for a Physical Residual Functional Capacity Assessment on September 8, 2000. (AR at 162-66.) Dr. Langelle stated in a report that Brown could lift fifty pounds occasionally and lift twenty-five pounds frequently. (AR at 163.) He also noted in his report that given normal breaks, Brown could stand or walk for a total of about six hours a day and sit for a total of about six hours during an eight-hour workday. (AR at 163.) However, Dr. Langelle did place limitations on Brown’s exposure to vibration, and the frequency with which she stooped, balanced, and climbed stairs. (AR at 164, 166.)

Before Brown’s physical troubles stemming from her fall, she suffered miscarriages in 1995 and 1998 that caused her great

emotional pain and stress. (AR at 96.) During that time, Brown sought psychiatric consultations and was diagnosed with adjustment disorder, anxiety, and depression in April of 1999. (Id.) On August 7, 2000, after Brown’s fall, Dr. Giuseppe Scarcella conducted a psychiatric evaluation of Brown and determined that she was moderately anxious, angry, depressed and frustrated with her work situation. (AR at 146-47.) According to Dr. Scarcella’s report, however, Brown’s primary concern during her visit was her physical condition. (Id.) In fact, Dr. Scarcella reported that Brown stated, “I see no need to see a psychiatrist, I am more concerned about my back.” (AR at 147.) Although Dr. Scarcellа’s diagnosis of Brown was “adjustment disorder with anxiety,” he concluded there was no evidence that she was unable to maintain her concentration in a way that could impair her work-related capacities. (Id.) On three separate occasions in 2001, though, Brown sought psychiatric treatment and was consistently diagnosed as suffering from anxiety and depression. (AR at 97.)

II. PROCEDURAL HISTORY

Brown applied for Disability Insurance Benefits and Supplemental Security Income on May 25, 2000. (AR at 18, 101-03, 279-81.) Her claims were initially denied and denied again upon reconsideration. (AR at 18, 32-36, 39-42.) Brown then rеquested a hearing before an administrative law judge. (AR at 43.)

During the hearing, the judge asked a vocational expert whether someone with Brown’s age, educational background, employment history, and work restrictions could perform any jobs that exist in the national economy. (AR at 24.) The expert testified that someone with Brown’s limitations could work as a “housekeeping cleaner,” an “office helper,” or a “small product assembler.” (AR at 352.) The expert also testified that in the national economy, there were 150,000 “housekeeping cleaner” jobs, 87,000 “office helper” jobs, and 176,000 “small product assembler” jobs. (Id.) Neither the judge nor the attorney for Brown inquired into any possible conflicts between the expert’s testimony about job availability and Brown’s work capacity on the one hand, and on the other, the data contained in the Dictionary of Occupational Titles (U.S. Dep‘t of Labor, 4th ed. rev. 1991) (“DOT”), a publication of the U.S. Department of Labor that contains descriptions of thousands of jobs that exist in the United States. (AR at 351-59.)

The judge concluded, based on the expert’s testimony, that Brоwn was “capable of making a successful adjustment to work that exists in significant numbers in the national economy,” and therefore was not disabled. (AR at 25.) Thus, the judge denied Brown’s claims for Disability Insurance Benefits and Supplemental Security Income. (AR at 27.) Brown requested review of the

judge’s decision by the Appeals Council of the SSA, and that request was denied. (AR at 10-14.)

Brown filed this action seeking to reverse the decision of the administrative law judge and moved for a judgment of reversal. The SSA moved for a judgment of affirmance.

DISCUSSION

I. STANDARD OF REVIEW

A. Scope of review

A district court’s review of the SSA’s findings of fact is limited tо whether those findings are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986); Krishnan ex rel. Deviprasad v. Massanari, 158 F. Supp. 2d 67, 70-71 (D.D.C. 2001). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[,]’” Perales, 402 U.S. at 401 (quoting Consolidated Edison Company of New York v. National ‍‌‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​​‌‌​​‌​‌​​‌‌​​​​​​‌​‌​‌‍Labor Relations Board, 305 U.S. 197, 229 (1938)); Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004), and is “more than a mere scintilla of evidence,” but “something less than a preponderance of the evidence.” Ware v. Barnhart, 357 F. Supp. 2d 134, 138 (D.D.C. 2004) (quoting Consol. Edison, 305 U.S. at 229, and FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C. Cir. 2002)). In making this determination, “the court must carefully scrutinize

the record, but may not reweigh the evidеnce and replace the [SSA’s] judgment regarding the weight of the evidence with its own.” Brown v. Barnhart, 370 F. Supp. 2d 286, 288 (D.D.C. 2005) (internal quotation marks omitted) (quoting Jackson v. Barnhart, 271 F. Supp. 2d 30, 34 (D.D.C. 2002)).

B. Legal framework for determining eligibility

In order for an individual to qualify for Disability Insurance Benefits, she must (i) meet the insured status requirements of the statute, (ii) be under age sixty-five, (iii) file an application for benefits and (iv) have a “disability” within the meaning of the statute. 42 U.S.C. §§ 416(i), 423. An individual is disabled if 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 has lasted or can be expected to last for a continuous periоd of not less than 12 months.” § 416(i)(1)(A). A claimant will not be considered disabled if she is able to engage in “any other kind of substantial gainful work which exists in the national economy.”4 § 423(d)(2)(A). An individual will qualify for Supplemental Security Income payments if she is a “disabled individual” and has income and resources below or

equal to statutorily specified amounts. 42 U.S.C. §§ 1381a, 1382, 1382c.

In order to determine whether a claimant is disabled, an administrative law judge is required to perform a five-step evaluation. 20 C.F.R. §§ 404.1520, 416.920. At step one, the judge determines whether the claimant has been employed in substantial gainful work since the onset of her impairment. If the claimаnt has performed substantial gainful work, her claim will be denied. If the claimant has not performed substantial gainful work, the judge must determine at step two whether the claimant’s impairments are severe. If the claimant’s impairments are not severe, the judge must deny the claim. If the impairments are severe, the judge at step three must compare the claimant’s impairments with those in the Listing of Impairments promulgated by the SSA. If a match exists, disability is conclusively presumed. If no match exists, the judge must continue the evaluation. At step four, the judge must determine if the claimаnt retains any “residual functional capacity,” namely, the ability to do any of her past gainful work. If the judge finds that the claimant can still perform her old job, the claim will be denied. Finally, if the claimant is unable to perform her past work, the judge must determine at step five if other gainful work exists in the national economy that the

claimant, notwithstanding her severe disability, could perform. 20 C.F.R. § 404.1560(c)(2).

The SSA bears the burden of showing that jobs the claimant could perform exist. Id. In making this determination, the judge may call a vocational expert to testify about the existence оf potential employment opportunities. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (stating that “[a]s is normally the case, that conclusion was based in large measure on the testimony provided by the vocational expert”). Generally, the judge also consults the DOT in making this assessment. See Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002). If an apparent conflict exists between the expert’s testimony and the DOT concerning existing jobs which a claimant could perform, the judge “must elicit a reasonable explanation for the conflict before relying on the [vocational expert’s] . . . evidence to support a determination or decision about whether the claimant is disabled.” Social Security Ruling (SSR) 00-4p, Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational Information in Disability Decisions, 65 Fed. Reg. 75,759-01 (Dec. 4, 2000) (“SSR 00-4p”).

II. REVIEW OF THE COMMISSIONER’S DECISION

In support of her motion for reversal, Brown makes several arguments. Brown contends that the SSA’s final decision is not supported by substantial evidence because the

administrative law judge failed to show that any of the jobs the expert listed match Brown’s limitations. (Brown’s Resp. to Mot. for Affirmance at 6.) Specifically, Brown claims that no record evidence shows that the different job names used by the vocational expert and administrative law judge - - “housekeeping cleaner” and “Housekeeper-Cleaner” respectively - - reflect the same occupation as the occupation “Cleaner, Housekeeping” listed in the DOT. (Id.) In addition, Brown argues that SSR 00-4p requires the judge to identify possible conflicts and resolve actual conflicts between the expert’s testimony and the DOT concerning job availability and a claimant’s work сapacity, and that the judge’s failure to do so renders the judge’s reliance on the expert’s testimony improper. (Brown’s Mem. Supp. Reversal at 3-8.) Lastly, Brown contends that the judge “applied an improper standard in evaluating [her] subjective complaints.” (Brown’s Mem. Supp. Reversal at 8.)

A. Substantial evidence

In this case, the administrative law judge determined at step one that Brown had not performed substantial gainful work since sustaining her injury in 2000. (AR at 19.) Next, the judge concluded that Brown suffered from severe, medically determinable impairments - - discogenic and degenerative disordеrs of the back and anxiety related disorders. (AR at 20.) At step three, the judge closely compared Brown’s ailments with those in the Listing of Impairments and determined that no match

existed. (AR at 20-21.) At step four, the judge concluded that Brown lacked the residual functional capacity to perform any of her past work. (AR at 24.) Lastly, at step five, the judge concluded that jobs existed in significant number within the national economy that Brown was capable of performing. (AR at 25.) The judge’s conclusion was based almost entirely ‍‌‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​​‌‌​​‌​‌​​‌‌​​​​​​‌​‌​‌‍on the testimony of the vocational expert. (Id.) (“Based on the testimony of the vocational expert, the undersigned has concluded that considering claimant’s age, educational background, work experience, and residual functional capacity, she is capable of making a successful adjustment to work that exists in significant numbers in the national economy.”)5 At the hearing, the judge did not inquire into any possible conflicts between the expert’s testimony and the DOT, nor did Brown’s attorney. (AR at 349-59.) Because the judge found that Brown could find work, he denied her claim. Only the judge’s conclusion at step fivе is in dispute here.

One of the jobs mentioned by the vocational expert, “housekeeping cleaner,” - - referred to as “Housekeeper-Cleaner”

by the judge - - is entirely consistent with the “Cleaner, Housekeeping” entry in the DOT listed at 323.687-014. A “Cleaner, Housekeeping”

[c]leans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of the following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps аnd renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets.

DOT 323.687-014. Importantly, this occupation meets all of the limitations the judge found Brown possessed, and the expert testified that 150,000 housekeeping cleaner positions exist in the national economy and 1,000 exist in the local economy. (See id.; AR at 352.) The existence of this number of jobs that Brown is able to perform is sufficient to support the SSA’s decision at step five that these jobs exist in significant number in the national economy. See Jones v. Barnhart, 315 F.3d 974, 979 (8th Cir. 2003) (holding 75,000 jobs nationwide sufficient); Weiler v. Apfel, 179 F.3d 1107, 1110-11 (8th Cir. 1999) (holding 32,000 jobs nationwide sufficient).

Brown’s response that no evidence shows that the expert’s reference to “housekeeping cleaner” - - or the judge’s reference to it as “Housekeeper-Cleaner” - - refers to the DOT listing of “Cleaner, Housekeeping” is unpersuasive. Brown’s capability limitations, which were given to the expert by the judge, map precisely to the job requirements of the DOT entry. The SSA need

only show “such relevant evidence as a reasonable mind might accept as adequate” to support its findings. Perales, 402 U.S. at 401 (internal quotation marks omitted). The fact that the job referred to by the expert possesses the identical limitations as does the job listing in the DOT is sufficient to show by substantial evidence they are the same. See Holcom v. Barnhart, 79 Fed. Appx. 397, 399 (10th Cir. 2003) (unpublished) (finding that the “check-casher” job referred to by the vocational expert was the same as the “check cashier” entry in the DOT because there was no conflict between the two, and rejecting the argument that the expert was referring to “cashier-checker” and “cashier II” jobs listed in DOT that conflicted with the claimant’s limitations). Because one of the occupations listed by the expert corresponds with Brown’s limitations as the occupation is listed in the DOT, and because that occupation exists in significant numbers in the national economy, the SSA’s decision in reliance on the expert’s testimony was based on substantial evidence.

B. SSR 00-4p

The language of SSR 00-4p reads in pertinent part:

Occupational evidence provided by a [vocational expert] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between [vocational expert] evidence and the DOT, the adjudicatоr must elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support a determination or decision about

whether the claimant is disabled. At the hearing level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.

Brown’s argument that SSR 00-4p requires the judge to ask about possible conflicts between the vocational expert’s testimony and the DOT is not without some support. Sеe Teverbaugh v. Comm’r, 258 F. Supp. 2d 702 (E.D. Mich. 2003); see also Steward v. Barnhart, 44 Fed. Appx. 151 (9th Cir. 2002) (unpublished). However, although the D.C. Circuit has not addressed this issue, there is substantial and persuasive authority that under SSR 00-4p, “the mere failure to ask such a question cannot by itself require remand.”6 Hodgson v. Barnhart, No. 03-185-B-W, 2004 WL 1529264, at *2 (D. Me. June 24, 2004); see Haas v. Barnhart, 91 Fed. Appx. 942, 947-48 (5th Cir. 2004) (unpublished) (stating that “claimants should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony

of an expert witness and the voluminous provisions of the DOT, and then present that conflict as reversible error”); Boone v. Barnhart, 353 F.3d 203, 206 (3d Cir. 2003) (refusing to adopt a “general rule that an unexplained conflict between a vocational expert’s testimony and the DOT necessarily requires reversal”); Justin v. Massanari, 20 Fed. Appx. 158, 160 (4th Cir. 2001) (unpublished) (interpreting SSR 00-4p to require the judge to address only evident discrepancies, not to uncover such discrepancies); Cobbs v. Barnhart, No. Civ. A. 03-2203-GTV, 2004 ‍‌‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​​‌‌​​‌​‌​​‌‌​​​​​​‌​‌​‌‍WL 2218387, at *8 (D. Kan. Sept. 28, 2004) (refusing to find reversible error where the judge failed to inquire about conflicts between the testimony of the vocational expert and the DOT).

Even if SSR 00-4p places an affirmative duty on the judge, such a procedural requirement would not necessarily bestow upon a plaintiff the right of automatic remand where that duty was unmet. Such an automatic right on a purely technical ground where there is otherwise substantial evidence to support the SSA’s findings of fact would be contrary to the deference due the SSA. See 42 U.S.C. § 405(g).

Brown’s contention that reversal is required because the judge failed to resolve actual conflicts between the expert’s description of the requirements of the occupations Brown could perform and the corresponding requirements for those occupations

listed in the DOT fails here. Of the three occupations thе expert mentioned in her testimony, the requirements of “office helper” and “assembler, small products,” as listed in the DOT, exceed the capabilities the judge determined that Brown could perform. According to the DOT, “office helper” and “assembler, small products,” both require Level 2 Reasoning, which entails the ability to carry out detailed but uninvolved written or oral instructions. (See Brown’s Mem. Supp. Reversal at 7-8; Brown’s Mem. Supp. Reversal, Ex. B (“DOT - office helper”) at 21; Brown’s Mem. Supp. Reversal, Ex. C (“DOT - assembler, small prods.”) at 25-26.) However, the judge specifically limited Brown’s capabilities to jobs that did not require more than the performance of “simple, unskilled tasks,” which corresponds to Level 1 Reasoning in the DOT. (AR at 352; Brown’s Mem. Supp. Reversal, Ex. D (“DOT Glossary”) at 30.) The expert’s testimony, therefore, conflicted with the DOT with regard to the jobs of “office helper,” and “assembler, small products” and no explanation was offered to resolve this conflict. However, as is explained above, the “housekeeping cleaner” job mentioned by the expert is entirely consistent with an entry in the DOT. When an expert testifies thаt a claimant can perform multiple jobs and at least one of those jobs does not conflict with the DOT and exists in significant numbers in the national economy, a decision by the SSA based on the expert’s testimony is supported by substantial

evidence. See Rutherford v. Barnhart, 399 F.3d at 557-58 (holding the SSA’s decision was based on substantial evidence where inconsistencies were not present for all of the occupations the vocational expert listed); Jones v. Barnhart, 364 F.3d 501, 505-06 (3d Cir. 2004) (affirming decision of the SSA where some, but not all, of the occupations listed by the vocational expert were in conflict with the DOT); Gray v. Barnhart, No. 04-207-B-W, 2005 WL 1923523, at *8 (D. Me. Aug. 9, 2005) (“Because one of the jobs listed by the administrative law judge has not been shown to be outside the physical and mental limitations found by him to exist, the plaintiff is not entitled to remand pursuant to his DOT-based arguments.”); Prunty, 2005 WL 1926611, at *5 (finding substantial evidence where the SSA withdrew its position that claimant could perform one job testified to by the vocational expert that conflicted with the DOT, and no conflict existed between the remaining job and the DOT). Since one of the three jobs described by the vocational expert is consistent with the DOT and exists in significant numbers in the national economy, no failure by the administrative law judge to ask if a conflict existed warrants a reversal.

C. Subjective complaints of pain

SSA regulations establish a two-step analysis for evaluating a claimant’s symptoms, including pain. 20 C.F.R. §§ 404.1529, 416.929; Social Security Ruling (SSR) 96-7p, Evaluation of

Symptoms in Disability Claims: Assessing the Credibility of an Individual‘s Statements, 61 Fed. Reg. 34,483-01 (July 2, 1996) (“SSR 96-7p”); see also Butler v. Barnhart, 353 F.3d 992, 1004 (D.C. Cir. 2004). First, the claimant must show, citing “medical signs and laboratory findings,” the existence of “a medically determinable impairment . . . which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. §§ 404.1529(b), 416.929(b). This finding “does not involve a determination as to the intensity, persistеnce, or functionally limiting effects of [the] symptoms.” Id. Then, the judge must evaluate the intensity and persistence of the claimant’s pain along with the extent to which the symptoms or pain limit the claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). In making this determination, the judge considers “all of the available evidence, including [the claimant’s] medical history, the medical signs and laboratory findings, and statements from [the claimant], [the claimant’s] treating or examining physician or psychologist, or other persons[.]” Id. If there appears to be a conflict between the clаimant’s testimony and the information on the record, the judge “must make a finding on the [claimant’s] credibility,” in order to determine the degree to which the claimant’s pain interferes with her ability to perform basic work functions. SSR 96-7p; see also

Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985); Butler, 353 F.3d at 1004-05.

The primary purpose of the two-step analysis is to ensure that the judge does not discredit Brown’s subjective complaints of pain arbitrarily. See Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (stating that the judge’s findings “must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain”). A judge dismisses a claimant’s complaints arbitrarily when he does so “based solely on a lack of objective medical evidence to fully corroborate the alleged severity of the pain.” Id. at 641. A judge dismisses a claimant’s complaints on permissible grounds when there ‍‌‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​​‌‌​​‌​‌​​‌‌​​​​​​‌​‌​‌‍are specific findings on credibility supported by evidence on the record. Butler, 353 F.3d at 1005.

In this case, the administrative law judge’s decision stated in part:

The claimant’s complaints of pain and alleged symptoms are not very credible. . . . The extensive medical examination performed by Dr. Maximous (Exhibit 4F) and the treatment notes of Enid Cruise, D.C. (Exhibit 15F), do not reveal any objective medical evidence or findings that would substantiate the intensity and limiting effects of the claimant’s alleged back pain and symptoms.

(Brown’s Mem. Supp. Reversal 9; AR at 22.) Brown argues that this passage indicates that the judge failed to make a

“determination whether [Brown] had made the threshold showing by objective evidence of the existence of a medical impairment[,]” and “instead found that [she] had failed to establish by objective evidence the amount and degree of her subjective complaints.” (Brown’s Mem. Supp. Reversal 9-10.)

This contention is not supported by the record. The judge, in conformity with the first step of the two-step analysis, did make a finding that Brown had a medically determinable impairment or combination of impairments that was severe. (AR at 20, 26.) Moreover, the judge conducted a thorough subsequent step two analysis of the intensity and persistence of Brown’s pain. In addition to evaluating Brown’s testimony and that of her friend, the judge evaluated all of the medical evidence in the record, as 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) require. The record also exposes conflicts between Brown’s complaints and the medical evidence.

For example, after acknowledging Brown’s stated history of depression, the judge noted that during a visit to Dr. Scarcella, Brown told the doctor she did not need to see a psychiatrist. (AR at 22.) In addition, the judge acknowledged Brown’s complaints that she could not “stand, sit, or walk for any length of time.” (AR at 22.) In evaluating this testimony, the judge gave weight to Dr. Maximous’s medical report because he is a “treating specialist and his report is well supported by

medically acceptable clinical and laboratory diagnostic techniques.” (AR at 23.) The judge noted that Dr. Maximous’s report indicated that Brown “is able to still do grocery shopping, take her children to the playground, swimming pool, and library, and prepare meals and do laundry.” (AR at 23.)

In addition to detailing the evidence he relied on, the judge also explained the evidence he disregarded. (AR at 23.) He noted that the testimony of Mitchell Brooks, a friend of Brown’s for fifteen years, failed to provide any useful information regarding the severity of Brown’s symptoms. (AR at 23.) The judge did not accord significant weight to several emergency room reports because they contained “only conclusionary medical opinions not supported by treatment notes or objective findings.” (AR at 23.) He rejected a Department of Labor Status Report dated October 9, 1995 submitted by Brown for similar reasons. (AR at 23.)

The administrative law judge properly assessed Brown’s credibility based on specific findings supported by the record, and his conclusions about Brown’s subjective claims are supportеd by substantial evidence.

CONCLUSION

The SSA’s determination that Brown was not disabled is supported by substantial evidence. The administrative law judge properly relied on the testimony of the vocational expert,

notwithstanding the requirements of SSR 00-4p, because there was no conflict between one occupation listed by the expert that existed in significant numbers in the national economy and an entry in the DOT. Further, the judge properly evaluated Brown’s subjective complaints because he conducted a thorough assessment in light of the entire record. Because the SSA’s determination was based on substantial evidence, Brown’s motion for reversal will be denied and the SSA’s motion for affirmance will be granted. A final Order accompanies this Memorandum Opinion.

SIGNED this 12th day of January, 2006.

/s/

RICHARD W. ROBERTS

United States District Judge

Notes

1
Dr. Cruise’s report reflects that she conducted several tests to evaluate Brown’s range of motion and responses to certain movements. (See AR at 199-201.)
2
Between May 9, 2000 and June 6, 2000, Brown visited Dr. Cruise for various treatments and evaluations approximately twenty-seven times. Brown received manual traction and electronic stimulation as well as othеr treatments. Throughout the period of treatment, Dr. Cruise noted progress in Brown’s condition. (See AR at 201-37.)
3
Dr. Maximous’s report reads: “In my opinion, this patient does have any physical disabilities that can prevent her from active daily living activities.” (AR at 149.) The SSA argues that Dr. Maximous simply omitted the word “not” from the statement. (See SSA’s Mem. Supp. Affirmance at 5.) Brown does not argue the point.
4
Substantial work activity is work that involves significant physical or mental activities even if on a part time basis, and gainful work activity is work done for pay or profit whether or not a profit is realized. 20 C.F.R. § 404.1572.
5
An administrative law judge may base his decision on the testimony of a vocational expert. Prunty v. Barnhart, No. 6:04 CV 00038, 2005 WL 1926611, at *3 (W.D. Va. Aug. 9, 2005) (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)) (“Testimony of a [vocational expert] constitutes substantial evidence for purposes of judicial review where his opinion is based upon consideration ‍‌‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​​‌‌​​‌​‌​​‌‌​​​​​​‌​‌​‌‍of all the evidence in the record and is in response to proper hypothetical questions which fairly set out all of claimant’s impairments.”).
6
Because of their facts, Teverbaugh and Steward are not necessarily to the contrary. In Teverbaugh, the expert identified one job the plaintiff could perform as “assembler” without further description, a title for whiсh the DOT carries over 100 listings, and another job with a strength listing exceeding that of which the claimant was capable. Teverbaugh, 258 F. Supp. 2d at 704. The court remanded the SSA’s claim denial since the administrative law judge had failed to ask the expert whether there was any conflict between her testimony and the DOT, and, unlike here, there was no other way of determining whether the jobs identified were ones that the claimant could perform. Id. at 706. In Steward, the SSA’s claim denial was reversed where, unlike here, all three jobs the expert testified the claimant could perform were in conflict with the DOT. 44 Fed. Appx. at 152.