Barton v. SSA CV-98-081-M 03/24/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Holly L. Barton, Claimant
v. Civil No. S-081-M
Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant. Holly Barton,
moves to reverse the Commissioner's decision denying her
application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423, and
Supplemental Security Income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381, et seg. (the "Act") .1 She
asserts that the Administrative Law Judge erroneously discounted
her subjective complaints of pain and failed to ascribe proper
weight to the opinions of one of her treating physicians.
Defendant objects and moves for an order affirming the decision
of the Commissioner.
Factual Background
I. Procedural History.
1 Title II of the Act provides for the payment of benefits to individuals who have contributed to the program and become disabled. Title XVI of the Act provides for the payment of benefits to individuals who meet certain income reguirements and have attained the age of 65, are blind, or are disabled. On May 17, 1995, claimant filed an application for
disability insurance benefits and supplemental security income
under Titles II and XVI of the Act, alleging that she had been
unable to work since November 22, 1994. The Social Security
Administration denied her application initially and on
reconsideration. On August 29, 1996, claimant and her attorney
appeared before an Administrative Law Judge, who considered
claimant's application de novo. On October 4, 1996, the ALJ
issued his order, concluding that claimant retained the residual
functional capacity to perform her past relevant work.
Administrative transcript, at 20. Accordingly, the ALJ
determined that claimant was not disabled, as that term is
defined in the Act, at any time through the date of his decision.
Claimant then sought review of the ALJ's decision by the
Appeals Council. On December 11, 1997, the Appeals Council
denied her reguest, thereby rendering the ALJ's decision a final
decision of the Commissioner, subject to judicial review. On
February 13, 1998, claimant filed a timely action in this court,
asserting that the ALJ's decision was not supported by
substantial evidence and seeking a judicial determination that
she is disabled within the meaning of the Act. Subseguently,
claimant filed a "Motion for Order Reversing Decision of the
Commissioner" (document no. 7). The Commissioner objected and
countered with a "Motion for Order Affirming the Decision of the
2 Commissioner" (document no. 9). Those cross-motions are pending.
II. Stipulated Facts.
Pursuant to this court's Local Rule 9.1(d), theparties have
submitted a statement of stipulated facts which, because it is
part of the court's record (document no. 8), need not be
recounted in this opinion.
Standard of Review
I . Properly Supported Findings by the ALJ are _____ Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary [now, the "Commissioner"], with or without remanding
the cause for a rehearing." Factual findings of the Commissioner
are conclusive if supported by substantial evidence. See 42
U.S.C. §§ 405(g), 1383(c) (3); Irlanda Ortiz v. Secretary of
Health and Human Services, 955 F.2d 765, 769 (1st Cir. 1991).2
Moreover, provided the ALJ's findings are supported by
substantial evidence, the court must sustain those findings even
when there may be substantial evidence supporting the claimant's
2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
3 position. See Gwathnev v. Chater, 104 F.3d 1043, 1045 (8th Cir.
1997) (The court "must consider both evidence that supports and
evidence that detracts from the [Commissioner's] decision, but
[the court] may not reverse merely because substantial evidence
exists for the opposite decision."). See also Andrews v.
Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (The court "must
uphold the ALJ's decision where the evidence is susceptible to
more than one rational interpretation.").
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts." Irlanda Ortiz, 955 F.2d at 769.
Accordingly, the court will give deference to the ALJ's
credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health and
Human Services, 803 F.2d 24, 26 (1st Cir. 1986)).
4 II. The Parties' Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or 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 period of not less than 12 months." 42 U.S.C.
§ 416(1)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act
places a heavy initial burden on the claimant to establish the
existence of a disabling impairment. See Bowen v. Yuckert, 482
U.S. 137, 146-47 (1987); Santiago v. Secretary of Health and
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove that her impairment prevents her
from performing her former type of work. See Gray v. Heckler,
760 F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary
of Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982)).
Nevertheless, the claimant is not reguired to establish a doubt-
free claim. The initial burden is satisfied by the usual civil
standard: a "preponderance of the evidence." See Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982).
In assessing a disability claim, the Commissioner considers
objective and subjective factors, including: (1) objective
medical facts; (2) the claimant's subjective claims of pain and
disability as supported by the testimony of the claimant or other
witnesses; and (3) the claimant's educational background, age,
5 and work experience. See, e.g., Avery v. Secretary of Health and
Human Services, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote, 690
F.2d at 6. Provided the claimant has shown an inability to
perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform. See Vazquez v. Secretary of Health and Human
Services, 683 F.2d 1, 2 (1st Cir. 1982) . If the Commissioner
shows the existence of other jobs which the claimant can perform,
then the overall burden remains with the claimant. See Hernandez
v. Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Benko v.
Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982).
When determining whether a claimant is disabled, the ALJ is
required to make the following five inquiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.902. Ultimately,
a claimant is disabled only if her:
physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age.
6 education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.
42 U.S.C. § 423(d) (2) (A) . See also 42 U.S.C. § 1382c(a) (3) (B) .
With those principles in mind, the court reviews claimant's
motion to reverse and the Commissioner's motion to affirm his
decision.
Discussion
I. Background - The ALJ's Findings.
In concluding that Ms. Barton was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step seguential evaluation process described in 20 C.F.R. §§
404.1520 and 416.920. At step 1 of the analysis, he concluded
that claimant had not engaged in substantial gainful activity
since November 22, 1994.3 He next determined that, while
claimant does suffer from a severe impairment (as defined in 20
C.F.R. §§ 404.1521 and 416.921), her impairment does not meet or
egual any of the impairments listed in Appendix 1 to Subpart P of
Regulation No. 4. Administrative transcript at 15. At step four
of the analysis, the ALJ concluded his inguiry, determining that
despite her impairment, claimant retained the residual functional
3 Although Ms. Barton briefly returned to work following her automobile accident, the ALJ considered that to have been an "unsuccessful work attempt." Administrative transcript at 15.
7 capacity to perform light work. Administrative transcript at 18.
Accordingly, the ALJ concluded that she was capable of performing
her past relevant work, which reguired physical exertion at only
the sedentary level.4
I find that with the claimant's limitations noted above, she would [] not be precluded from returning to her work as a secretary, receptionist or word processor which are generally sedentary exertionally and would not exceed the claimant's physical capabilities. She retains the ability to perform her past relevant work activity. I find, therefore, the claimant is not disabled within the meaning of the Social Security Act at any time prior to the date of this decision.
Administrative transcript at 19.
II. Weight Ascribed to Opinions of Treating Physicians.
Claimant asserts that the ALJ erred by failing to "assign
appropriate weight to the findings of one of [her] treating
physicians." Claimant's motion (document no. 7) at 2.
Specifically, she says that the ALJ should not have dismissed Dr.
Bruton's opinion that claimant was capable of lifting only 10
pounds occasionally and five pounds freguently, an RFC consistent
4 The pertinent regulations define light work as involving the "lifting [of] no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it reguires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. §§ 404.1567(b) and 416.967(b). Sedentary work, on the other hand, "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. . . . Jobs are sedentary if walking and standing are reguired occasionally and other sedentary criteria are met." 20 C.F.R. §§ 404.1567(a) and 416.967 (a) . with work at the sedentary level (as noted above, the ALJ
concluded instead that claimant could lift up to 20 pounds
occasionally and 10 pounds frequently and, therefore, was able to
perform light work).5
Generally, the ALJ must afford more weight to the medical
opinions of a claimant's treating physicians because those
sources are:
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2). Of course, the ALJ may decide not to
give controlling weight to the opinions of a claimant's treating
physicians. However, if the ALJ does not give those opinions
controlling weight, he or she must "always give good reasons in
[the] notice of determination or decision for the weight
[actually ascribed] to [the claimant's] treating source's
opinion." Id.
5 Claimant suggests that the functional capacity assessment (a portion of which the ALJ allegedly improperly discounted) was prepared by Dr. Rudins. The record suggests, however, that the ALJ properly noted that this report was prepared by Dr. William Bruton. See Administrative transcript at 17, 192-201. See also Joint Statement of Material Facts (document no. 8) at 6. Although this point is not raised by the Commissioner,
claimant's assertion of error would seem to have little practical
effect on the outcome of this case. Even if, as she claims, she
were capable of lifting only 10 pounds occasionally and five
pounds freguently (as Dr. Bruton reported), she would still be
able to perform sedentary work of the sort she previously
performed as a secretary, receptionist, and word processor. See
20 C.F.R. §§ 404.1567(a) and 416.967(a). See also Dictionary of
Occupational Titles §§ 201.362.030; 203.383-030; 203.583-066; and
237.367.038. And, that is precisely what the ALJ concluded.6
At step four of the seguential analysis, the ALJ must
determine whether the claimant has carried her burden by
demonstrating that she is incapable of performing her previous
work. Here, claimant points to evidence in the record (in the
form of a medical opinion suggesting that she has residual
functional capacity to perform sedentary work) which actually
supports the ALJ's conclusion that she was able to perform her
previous work. Thus, even if the ALJ did fail to assign proper
weight to a treating source's medical opinion (which, based upon
the record before the court, seems highly unlikely), that error
would not have undermined his ultimate conclusion, which is
6 Claimant does not challenge the ALJ's conclusion that her past relevant work as a receptionist, word processor, and secretary are all jobs properly categorized as being at the "sedentary" exertional level. Nor does claimant assert that she suffers from any non-exertional limitations which might hinder her ability to find appropriate work in the national economy.
10 supported by substantial evidence, that claimant failed to
demonstrate that she was incapable of performing her previous
work.
III. Weight to be Ascribed to Claimant's Subjective Complaints of Pain.
Claimant next argues that the ALJ failed to consider her
oral testimony (suggesting that she was incapable of performing
any work in the national economy) and improperly discounted her
subjective complaints of pain. Among other things, claimant
alleges that the ALJ misconstrued the record evidence and
improperly concluded that her subjective complaints of pain were
both overstated and inconsistent with the physical findings of
her treating physicians. She asserts that the ALJ improperly
(and without adeguate foundation) discounted her complaints of
pain and says that the ALJ's conclusion that she retains the RFC
to perform her past relevant work is not supported by substantial
evidence.
When determining a claimant's RFC, the ALJ must review the
medical evidence regarding the claimant's physical limitations as
well as her own description of those physical limitations,
including her subjective complaints of pain. See Manso-Pizzarro
v. Secretary of Health & Human Services, 76 F.3d 15, 17 (1st Cir.
1996). When, as here, the claimant has demonstrated that she
suffers from an impairment that could reasonably be expected to
produce the pain she alleges, the ALJ must then evaluate the
11 intensity, persistence, and limiting effects of the claimant's
symptoms to determine the extent to which those symptoms limit
her ability to do basic work activities. See Social Security
Ruling ("SSR") 96-7p (July 2, 1996).
[WJhenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . . .
In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individuals' statements.
Id. Those factors include the claimant's daily activities; the
location, duration, freguency, and intensity of the claimant's
pain or other symptoms; factors that precipitate and aggravate
the symptoms; the type dosage, effectiveness, and side effects of
any medication the claimant takes (or has taken) to alleviate
pain or other symptoms; and any measures other than medication
that the claimant receives (or has received) for relief of pain
or other symptoms. Id. See also Avery, 797 F.2d at 23; 20
C.F.R. § 404 .1529 (c) (3) .
12 In challenging the ALJ's disability determination, claimant
points to portions of her testimony at the hearing which support
her assertion that she is totally disabled. Specifically, she
notes that she testified that: she would return to work if she
were physically able to do so (administrative transcript at 248);
she does not believe that she is capable of performing any work
in the national economy because she is unable to sit or stand for
prolonged periods (id., at 248-49); and she could neither sit for
six hours a day nor stand for two hours a day (id., at 250).
It is, however, the ALJ's role to assess the credibility of
claimant's asserted inability to work in light of the medical
record, to weigh the findings and opinions of both "treating
sources" and other doctors who have examined her, and to consider
the other relevant factors identified by the regulations and
applicable case law. Part of his credibility determination
necessarily involves an assessment of a claimant's demeanor,
appearance, and general "believability." Accordingly, if
properly supported, the ALJ's credibility determination is
entitled to substantial deference from this court. See, e.g.,
Irlanda Ortiz, 955 F.2d at 769 (holding that it is "the
responsibility of the [Commissioner] to determine issues of
credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts").
13 Here, in support of his conclusion that claimant's
assertions of pain were not entirely credible, the ALJ
considered, among other things, that claimant suffers from no
neurological deficiencies, that the objective medical findings in
her records provide only "minimal" support for her allegations of
pain (e.g., "the results of physical examinations have been
limited to tenderness on palpation and some restricted motion,"
administrative transcript at 18), and that claimant's daily
activities included light house cleaning, cooking, occasional
shopping, visiting friends and family, reading, watching
television, and, on occasion, picking up her children at school
or from friends' homes. Administrative transcript at 18-19.
Accordingly, the ALJ first concluded that claimant's complaints
of pain did not interfere with her ability to concentrate. Next,
he concluded that, in light of her daily activities, those
complaints were somewhat overstated. Id.
In addition to the factors identified by the ALJ, the record
contains additional support for his conclusion that claimant is
not disabled within the meaning of the Act. For example, in
March of 1995, claimant's internist. Dr. Johnson, observed (in
his referral letter to Dr. Rudins) that, "[o]ther than some
slight tenderness, I am unable to detect any other abnormalities
on her current physical examination." Administrative transcript
at 149. After meeting with and examining claimant in March, May,
and July of 1995, Dr. Rudins reported that he "suggested that
14 [claimant] start investigating options for work. Even if she
cannot tolerate full-time sitting, a part-time job would be
perfectly reasonable." Id., at 175.
That opinion was shared by Robert Raime, M.D., and Munro
Proctor, M.D., the two DOS physicians who reviewed claimant's
medical records. Each concluded that her impairments did not
prevent her from performing light work. Administrative
transcript at 72-79. Finally, in the functional capacity
assessment completed in January 1996 and discussed above. Dr.
Bruton concluded that: (1) claimant can lift and/or carry up to
10 pounds occasionally and up to five pounds freguently; (2)
claimant can sit for up to eight hours a day, provided she is
able to take an hourly break; (3) claimant's ability to
stand/walk was unaffected by her impairment; (4) claimant could
climb, balance, stoop, crawl, kneel, and crouch occasionally
during the work day; and (5) claimant's ability to reach, handle,
feel, push/pull, see, hear, and speak were all unaffected by her
impairment. Administrative transcript at 192-200. All of this
evidence supports the ALJ's conclusion that claimant's
allegations of disabling pain were somewhat overstated and,
notwithstanding those allegations, she retains, at a minimum, the
ability to perform her prior work at the sedentary exertional
level.
15 As claimant points out, however, there is certainly evidence
in the record which suggests that she is disabled (most notably,
claimant's own testimony about the disabling nature of her pain).
However, the scope of this court's review of the ALJ's decision
is not de novo; rather, it is limited. Even when there is
evidence in the record which weighs against the ALJ's disability
determination, the court must affirm that decision if it is
supported by substantial evidence. See Gwathnev v. Chater, 104
F.3d at 1045; Andrews v. Shalala, 53 F.3d at 1039-40. When a
claimant's subjective complaints are appropriately considered in
light of the Avery factors, the credibility determination is left
to the ALJ. Frustaglia, 829 F.2d at 195. Because the ALJ's
credibility findings in this case are properly supported by the
record, they stand.
Conclusion
No one appears to dispute the fact that Ms. Barton
experiences fairly significant pain as a result of the injuries
she sustained in the November, 1992 motor vehicle accident.
However, the issue presented is whether there is substantial
evidence in the record to support the ALJ's conclusion that her
subjective complaints of pain were somewhat overstated and, in
light of her residual functional capacity, she was capable of
returning to her past relevant work at the sedentary exertional
16 For the reasons set forth above, the court concludes that
the ALJ's determination that claimant was not disabled within the
meaning of the Act is supported by substantial evidence and,
therefore, is affirmed. Accordingly, claimant's motion for order
reversing the decision of the Commissioner (document no. 7) is
denied and the Commissioner's motion for order affirming his
decision (document no. 9) is granted. The Clerk of the Court is
directed to enter judgment in accordance with the terms of this
order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 24, 1999
cc: Brian P. McEvoy, Esg. David L. Broderick, Esg.