UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Virginia Blamire
v. Civil No. 14-cv-212-LM Opinion No. 2015 DNH 105 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Virginia Blamire moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423. The
Acting Commissioner, in turn, moves for an order affirming her
decision. For the reasons that follow, the decision of the
Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”), is affirmed.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . . 42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490
U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting 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 [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
2 955 F.2d 765, 769 (1st Cir. 1991) (citations omitted).
Moreover, the court “must uphold the [Acting Commissioner’s]
conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529, 535 (1st
Cir. 1988). Finally, when determining whether a decision of the
Commissioner is supported by substantial evidence, the court
must “review[] the evidence in the record as a whole.” Irlanda
Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec’y of HHS, 647
F.2d 218, 222 (1st Cir. 1981)).
Background
The parties have submitted a Joint Statement of Material
Facts (document no. 12). That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Blamire has been diagnosed with psoriatic arthritis, which
is “the occurrence of psoriasis and polyarthritis, resembling
rheumatoid [arthritis] . . . and often involving the digits.”
Stedman’s Medical Dictionary 160 (28th ed. 2006). Rheumatoid
arthritis, in turn, is “a generalized disease . . . which
primarily affects connective tissue . . . involving many joints,
especially those in the hands and feet . [and which is] often
3 chronic and progressive, leading to deformities and disability.”
Id. Blamire’s treatment has included several forms of
medication.
With respect to Blamire’s ability to perform work-related
activities, the record includes: (1) an assessment of Blamire’s
physical residual functional capacity1 completed by a Social
Security single decision maker2 in December of 2011; (2) a
“Medical Source Statement of Ability to do Work-Related
Activities (Physical)” completed by Dr. Andree Phillips,
Blamire’s treating rheumatologist, in January of 2012; and (3) a
second medical source statement completed by Dr. Phillips in
October of 2012.
In her second statement, Dr. Phillips opined that Blamire:
(1) could never lift or carry more than 20 pounds, but could
occasionally lift or carry up to 20 pounds and could frequently
1“Residual functional capacity,” or “RFC,” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1).
2“Single decision makers are authorized under 20 C.F.R. § 404.906(a) as a ‘testing modification’ in several states, including New Hampshire, for streamlining the disability determination process.” Martel v. U.S. Soc. Sec. Admin., Comm’r, No. 13-cv-48-PB, 2013 WL 6068241, at *13 n.12 (D.N.H. Nov. 18, 2013) (citation omitted); see also Sratton v. Astrue, 987 F. Supp. 2d 135, 138 n.2 (D.N.H. 2012) (describing the single-decision-maker model).
4 lift or carry up to 10 pounds; (2) could sit for one hour
without interruption and for eight hours in an eight-hour work
day; (3) could stand for one hour without interruption and for
four hours in an eight-hour work day; (4) could walk for one
hour without interruption and for two hours in an eight-hour
work day; (5) did not need a cane to ambulate; (6) could
occasionally use either hand for reaching, handling, fingering,
feeling, and pushing/pulling; (7) could occasionally use either
foot to operate foot controls; (8) could never climb stairs,
ramps, ladders or scaffolds but could occasionally balance,
stoop, kneel, crouch, and crawl. With regard to environmental
limitations, Dr. Phillips opined that Blamire (1) could not
tolerate exposure to unprotected heights, humidity, wetness, or
extreme heat or cold; (2) could tolerate occasional exposure to
moving mechanical parts, operating a motor vehicle, and
vibrations; and (3) could tolerate moderate (office) noise.
Finally, Dr. Phillips opined that Blamire was able to: (1)
perform activities like shopping; (2) travel without a companion
for assistance; (3) ambulate without an assistive device; (4)
walk a block at a reasonable pace on rough or uneven surfaces;
(5) use standard public transportation; (6) climb a few steps at
a reasonable pace with the use of a single hand rail; (7)
5 prepare a simple meal and feed herself; (8) care for her
personal hygiene; and (9) sort, handle, or use paper/files.
After conducting a hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
of law:
3. The claimant has the following severe impairment: psoriatic arthritis (20 CFR 404.1520(c)).
. . . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) allowing her to lift and carry up to twenty pounds occasionally and ten pounds frequently; sit, stand, or walk for one-hour periods of time each but overall sit up to eight hours per day, stand up to four hours per day, and walk up to two hours per day; occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl but never climb ladders, ropes, or scaffold[s]; occasionally reach, handle, finger, feel, push, or pull; and she would need to avoid unprotected heights, exposure to concentrated levels of humidity or wetness and temperature extremes, but she could occasionally drive a car, work with dangerous machinery, and perform work with vibration.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
6 . . . .
10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
Administrative Transcript (hereinafter “Tr.”) 49, 50, 54. Based
upon his assessment of Blamire’s residual functional capacity,
and his reliance upon testimony from a vocational expert (“VE”),
the ALJ determined that Blamire was able to perform the
occupations of surveillance system monitor, companion, and
hostess.
Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question
in this case is whether Blamire was under a disability.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or
7 which has lasted or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). Moreover,
[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step process. See 20 C.F.R. §
404.1520.
The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and
8 age, is unable to do any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations. 20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in 20 C.F.R. § 416.969; Heckler v. Campbell, 461 U.S. 458 (1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in 20 C.F.R. § 416.969. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust, id. § 200(e)) that restrict his [or her] ability to perform jobs he [or
9 she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,” 20 C.F.R. § 416.969a(d) (2001). See also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).
Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Blamire’s Arguments
According to Blamire, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ: (1) erred at
step three by determining that her psoriatic arthritis does not
meet or medically equal the severity of a listed impairment; (2)
formulated a residual functional capacity that was not supported
by substantial evidence; (3) improperly assessed her
credibility; (4) relied upon VE testimony that was based upon a
hypothetical question that incorporated a flawed RFC; and (5)
improperly relied upon the medical-vocational guidelines. The
court is not persuaded by any of Blamire’s arguments.
10 1. Step Three
Blamire first argues that the ALJ erroneously determined
that her psoriatic arthritis did not meet the conditions for
Listing 1.02, major dysfunction of a joint, because, in fact,
“[t]he medical evidence and testimony clearly indicate chronic
joint pain and stiffness resulting in an inability to ambulate
effectively and an inability to perform fine and gross movements
effectively.” Cl.’s Br. (doc. no. 9-1) 5.
To meet the level of severity required for Listing 1.02,
joint dysfunction must result in either an inability to ambulate
effectively or an inability to effectively perform fine and
gross movements with an upper extremity. But, a listing-level
joint dysfunction must also be
[c]haracterized by gross anatomical deformity (e.g., subluxation, contraction, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankyloses of the affected joint(s).
20 C.F.R. § 404, Subpt. P, App. 1, Listing 1.02 (emphasis
added). Moreover, “[f]or a claimant to show that [her]
impairment matches a listing, it must meet all of the specified
medical criteria [which means that] [a]n impairment that
manifests only some of those criteria, no matter how severely,
11 does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990), superseded by statute on other grounds as stated in
Colon v. Apfel, 133 F. Supp. 2d 330, 338-39 (S.D.N.Y. 2001)
(emphasis in the original).
In determining that Blamire’s psoriatic arthritis did not
meet Listing 1.02, the ALJ pointed out that she did “not display
gross anatomical deformity.” Tr. 50. In the only office note
that addresses the issue of deformity, Dr. Phillips reported
that “[m]usculoskeletal exam of the hand reveals no significant
deformity in the DIP or PIP joints or MCPs.” Tr. 317.
Moreover, while several of Dr. Phillips’s office notes mention
range of motion, none reports any limitation. See Tr. 251, 256,
293, 303, 313, 315, 317, 320. Because the record includes no
evidence of gross anatomical deformity and considerable evidence
of normal, unlimited joint motion, the ALJ committed no error at
step three by determining that Blamire’s condition does not meet
the level of severity necessary required by Listing 1.02. See
Zebley, 493 U.S. at 530.
2. RFC
Blamire next claims that the ALJ’s assessment of her RFC is
not supported by substantial evidence because “[t]here is no
medical evidence to substantiate the findings that the Claimant
12 can overall sit up to eight hours per day [and] stand up to four
hours per day.” Cl.’s Br. (doc. no. 9-1) 5.
In her medical source statement of October 2012, Blamire’s
treating rheumatologist opined that she could sit for eight
hours in an eight-hour workday and stand for four hours in an
eight-hour workday. To be sure, Dr. Phillips had opined, about
ten months earlier, that Blamire could only sit for six hours in
an eight-hour workday and stand for one hour in an eight-hour
workday. See Tr. 297. But, as the court has noted, “the
Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769.
Thus, the ALJ committed no error by basing Blamire’s RFC on Dr.
Phillips’s more recent opinion.
Blamire also claims that the ALJ erred by determining that
her RFC qualified her as capable of performing light work.
Under the applicable regulations:
Light work involves lifting no more than 20 pounds at a time with frequent 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 requires 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.
13 20 C.F.R. § 404.1567(b). Blamire does not identify with any
precision what aspects of light work she is not capable of
performing, and Dr. Phillips’s second medical source statement
is substantial evidence in support of the ALJ’s determination
that Blamire is capable of meeting the exertional requirements
of light work.
3. Credibility
Blamire also makes a cursory attempt to challenge the ALJ’s
assessment of the credibility of her testimony, arguing that:
(1) the ALJ gave “an insufficient explanation discrediting the
Claimant’s testimony with regard to the limitations of her daily
activities, the increased difficulty in bathing and dressing, as
well as the need for guidance and assistance while showering,”
Cl.’s Br. (doc. no 9-1) 6; and (2) the ALJ “determined [that]
her claims of severity were not supported by objective
evidence,” id. at 7, but made that determination by ignoring
“the medical records of increased symptoms, increased tremors,
and increased muscle spasms,” id.
As a preliminary matter, the court is not convinced that
Blamire’s credibility arguments are sufficiently developed to
merit the court’s attention. See Kalantzis v. U.S. Soc. Sec.
Admin., Comm’r, No. 13-cv-12-JL, 2014 WL 580143, at *3 (D.N.H.
14 Feb. 10, 2014) (citing Montero v. Colvin, No. 12-cv-412-JL, 2013
WL 4042424, at *1 n.1 (D.N.H. Aug. 8, 2013); Dawes v. Astrue,
No. 1:11-cv-272-DBH, 2012 WL 1098449, at *7 (D. Me. Mar. 30,
2012)). But, in any event, neither argument is meritorious.
In declining to fully credit Blamire’s testimony concerning
her ability to perform daily activities, including bathing and
dressing, the ALJ specifically referred to Blamire’s report to
Dr. Phillips that she was spending five days a week at home with
her 11-year-old daughter while her husband was on the road
working as a trucker. See Tr. 303. That explanation is
sufficient. See Irlanda Ortiz, 955 F.2d at 769 (“the resolution
of conflicts in the evidence is for the [Acting Commissioner],
not the courts”). With regard to the ALJ’s purported failure to
consider “the medical records of increased symptoms,” Cl.’s Br.
(doc. no. 9-1) 7, the material that Blamire charges the ALJ with
ignoring consists exclusively of subjective complaints that
Blamire made to Dr. Phillips. But, Blamire’s subjective
complaints to Dr. Phillips are not medical evidence. See Ford
v. Barnhart, No. 04-CV-194-PB, 2005 WL 1593476, at *8 (D.N.H.
July 7, 2005). Thus, the ALJ’s failure to mention those
complaints in his decision does nothing to undermine his
determination that Blamire’s statements about her symptoms were
not adequately supported by medical evidence.
15 4. VE Testimony
Blamire claims that this case should be remanded because
the ALJ relied upon the VE’s answer to a hypothetical that
“excluded limitations described in the Claimant’s testimony with
regard to her ability to stand and walk for any length of time.”3
Cl.’s Br. (doc. no. 9-1) 6. That argument fails because Blamire
offered no testimony about her ability to stand,4 and while she
testified that she sometimes walks “bent over,” Tr. 85, she
never testified that her condition limited the amount of time
she was able to walk or the amount of walking she was able to
do.
3Blamire continues: “When those limitations were inquired to the VE, she testified that the Claimant would be precluded from light work if those were requirements as well as the inability to deal with the issue of standing for any length of time.” Cl.’s Br. (doc. no. 9-1) 6. Blamire does not provide a citation that directs the court to the testimony to which she refers, and the court has been unable to locate any such testimony. Blamire’s counsel did ask the VE whether an inability to sit, stand, or walk for more than an hour at a time would preclude a person from performing the three jobs she had identified as appropriate for Blamire. The VE answered that question in the negative, indicating that all three jobs could be performed with a sit/stand option. See Tr. 96-97.
4The only mention of standing at the hearing was the ALJ’s observation that Blamire had been standing throughout it. See Tr. 81.
16 5. Reliance upon the Medical-Vocational Guidelines
Finally, Blamire claims that the ALJ’s “reliance upon the
Medical-Vocational Guidelines was a further error.” Cl.’s Br.
(doc. no. 9-1) 6. That claim fails because the ALJ did not rely
upon the medical-vocational guidelines. Rather, because the ALJ
found that Blamire had nonexertional limitations, he eschewed
the Medical-Vocational Guidelines and relied upon the testimony
of a VE.
Conclusion
Because the ALJ committed neither a legal nor a factual
error in evaluating Blamire’s claim and determining that she was
not disabled, see Manso-Pizarro, 76 F.3d at 16, her motion for
an order reversing the Acting Commissioner’s decision, document
no. 9, is denied, and the Acting Commissioner’s motion for an
order affirming her decision, document no. 11, is granted. The
clerk of the court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 26, 2015 cc: John A. Wolkowski, Esq. T. David Plourde, Esq.