Blanchette v. SSA
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Opinion
Blanchette v . SSA 08-CV-349-SM 06/09/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Teresa M . Blanchette, Claimant
v. Civil N o . 08-cv-349-SM Opinion N o . 2009 DNH 077 Michael Astrue, Commissioner, Social Security Administration, Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Teresa Blanchette moves to
reverse the Commissioner’s decision denying her application for
Social Security disability insurance benefits, or DIB, under
Title II of the Social Security Act, 42 U.S.C. § 423. The
Commissioner, in turn, moves for an order affirming his decision.
For the reasons given below, the decision of the 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 [Commissioner]
has committed a legal or factual error in evaluating a particular
claim.’ ” Manso-Pizarro v . Sec’y of HHS, 76 F.3d 1 5 , 16 (1st
Cir. 1996) (quoting Sullivan v . Hudson, 490 U.S. 8 7 7 , 885
(1989)).
As for the statutory requirement that the 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 7 2 7 , 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 5 9 4 , 597 (1st
Cir. 1980) (quoting Richardson v . Perales, 402 U.S. 389, 401
(1971)). 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
v . Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v . Sec’y of HHS, 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). 1
1 “It is the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the
2 Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 0 ) . That statement is part of the court’s
record and will be summarized here to the extent necessary to
provide context for this decision.
From February of 1986 through June of 2004, Blanchette
worked as a school secretary, and from September of 2004 through
June of 2006, she worked as a high-school attendance secretary.
(Administrative Transcript (hereinafter “Tr.”) at 129.) As an
attendance secretary, her work-related physical activities
included walking, standing, sitting, climbing, stooping, and
writing/typing/handling small objects. (Tr. at 132.) The
heaviest weight she lifted was less than ten pounds. (Id.)
After she stopped working as a high-school attendance secretary,
she continued to work as a bookkeeper for her husband’s business,
a job she had performed since 1975. (Tr. at 129.) Regarding
that work, the Joint Statement of Material Facts explains:
In November 2006, [Blanchette] reported [to SSA] that she planned to continue working as her husband’s bookkeeper and secretary for 5 to 6 hours a week,
record evidence. Indeed, the resolution of conflicts in the evidence is for the [Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court “must uphold the [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).
3 making $400-$500 per month (Tr. 1 0 8 ) . After her [DIB] claim was initially denied on the basis of continued performance of substantial gainful activity (see T r . 1 0 9 ) , she reported that she had discontinued all services on behalf of her husband’s business on November 1 2 , 2006 (Tr. 1 1 0 ) .
(Jt. Statement at 2.)
In October of 2006, Blanchette was seen by D r . Pancras Van
der Laan. In his progress note, he described her visit in the
following way: “57 year old female presents with c/o abnormal
cholesterol pt denied insurance, despite my letter and her lack
of seizures for 35-40 years . . .” (Tr. at 199.) D r . Van der
Laan took Blanchette’s medical history and wrote a “Review of
Systems” that included, among other entries: “knee pain n o . . . .
back pain n o . . . . no back pain.” (Id.) He also performed a
physical examination. His neurological examination produced the
following results: “Sensory: normal. Motor: normal strength
bilaterally. Gait: normal. Babinski: negative.2 Reflexes: 2+
bilaterally. Coordination: normal.” (Tr. at 200.) D r . Van der
Laan’s physical examination resulted in three assessments:
obesity, epilepsy, and hyperlipidemia.3 (Id.)
2 Babinski reflex is defined as “dorsiflexion of the big toe on stimulating the sole of the foot; normal in infants but in others a sign of a lesion in the central nervous system . . .” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1634 (31st ed. 2007). 3 Hyperlipidemia is defined as “elevated concentrations of any or all of the lipids [such as triglycerides or cholesterol] in the plasma.” DORLAND’S, supra note 2 , at 903.
4 On November 2 1 , 2006, Blanchette applied for Social Security
disability insurance benefits, claiming an onset date of November
1 0 , 2006.
In January of 2007, D r . Burton Nault, a non-examining
physician, completed a “Physical Residual Functional Capacity
Assessment” in which he found that Blanchette could: occasionally
lift and/or carry twenty pounds, could frequently lift and/or
carry ten pounds, could stand and/or walk, and could sit, for
about six hours in an eight-hour work day, and could push or pull
without limitation. (Tr. at 2 0 7 ) . He found that she could
occasionally climb ramps, stairs, ladders, ropes, and scaffolds;
balance, stoop, kneel, crouch, and crawl. (Tr. at 208.) He
found no manipulative, visual, communicative, or environmental
limitations. (Tr. at 209-10.) D r . Nault concluded with the
following additional comments:
Most recent PE shows normal motor strength bilaterally, normal gait, reflexes 2+ in LEs, coordination is normal.
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Blanchette v . SSA 08-CV-349-SM 06/09/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Teresa M . Blanchette, Claimant
v. Civil N o . 08-cv-349-SM Opinion N o . 2009 DNH 077 Michael Astrue, Commissioner, Social Security Administration, Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Teresa Blanchette moves to
reverse the Commissioner’s decision denying her application for
Social Security disability insurance benefits, or DIB, under
Title II of the Social Security Act, 42 U.S.C. § 423. The
Commissioner, in turn, moves for an order affirming his decision.
For the reasons given below, the decision of the 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 [Commissioner]
has committed a legal or factual error in evaluating a particular
claim.’ ” Manso-Pizarro v . Sec’y of HHS, 76 F.3d 1 5 , 16 (1st
Cir. 1996) (quoting Sullivan v . Hudson, 490 U.S. 8 7 7 , 885
(1989)).
As for the statutory requirement that the 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 7 2 7 , 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 5 9 4 , 597 (1st
Cir. 1980) (quoting Richardson v . Perales, 402 U.S. 389, 401
(1971)). 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
v . Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v . Sec’y of HHS, 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). 1
1 “It is the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the
2 Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 0 ) . That statement is part of the court’s
record and will be summarized here to the extent necessary to
provide context for this decision.
From February of 1986 through June of 2004, Blanchette
worked as a school secretary, and from September of 2004 through
June of 2006, she worked as a high-school attendance secretary.
(Administrative Transcript (hereinafter “Tr.”) at 129.) As an
attendance secretary, her work-related physical activities
included walking, standing, sitting, climbing, stooping, and
writing/typing/handling small objects. (Tr. at 132.) The
heaviest weight she lifted was less than ten pounds. (Id.)
After she stopped working as a high-school attendance secretary,
she continued to work as a bookkeeper for her husband’s business,
a job she had performed since 1975. (Tr. at 129.) Regarding
that work, the Joint Statement of Material Facts explains:
In November 2006, [Blanchette] reported [to SSA] that she planned to continue working as her husband’s bookkeeper and secretary for 5 to 6 hours a week,
record evidence. Indeed, the resolution of conflicts in the evidence is for the [Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court “must uphold the [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).
3 making $400-$500 per month (Tr. 1 0 8 ) . After her [DIB] claim was initially denied on the basis of continued performance of substantial gainful activity (see T r . 1 0 9 ) , she reported that she had discontinued all services on behalf of her husband’s business on November 1 2 , 2006 (Tr. 1 1 0 ) .
(Jt. Statement at 2.)
In October of 2006, Blanchette was seen by D r . Pancras Van
der Laan. In his progress note, he described her visit in the
following way: “57 year old female presents with c/o abnormal
cholesterol pt denied insurance, despite my letter and her lack
of seizures for 35-40 years . . .” (Tr. at 199.) D r . Van der
Laan took Blanchette’s medical history and wrote a “Review of
Systems” that included, among other entries: “knee pain n o . . . .
back pain n o . . . . no back pain.” (Id.) He also performed a
physical examination. His neurological examination produced the
following results: “Sensory: normal. Motor: normal strength
bilaterally. Gait: normal. Babinski: negative.2 Reflexes: 2+
bilaterally. Coordination: normal.” (Tr. at 200.) D r . Van der
Laan’s physical examination resulted in three assessments:
obesity, epilepsy, and hyperlipidemia.3 (Id.)
2 Babinski reflex is defined as “dorsiflexion of the big toe on stimulating the sole of the foot; normal in infants but in others a sign of a lesion in the central nervous system . . .” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1634 (31st ed. 2007). 3 Hyperlipidemia is defined as “elevated concentrations of any or all of the lipids [such as triglycerides or cholesterol] in the plasma.” DORLAND’S, supra note 2 , at 903.
4 On November 2 1 , 2006, Blanchette applied for Social Security
disability insurance benefits, claiming an onset date of November
1 0 , 2006.
In January of 2007, D r . Burton Nault, a non-examining
physician, completed a “Physical Residual Functional Capacity
Assessment” in which he found that Blanchette could: occasionally
lift and/or carry twenty pounds, could frequently lift and/or
carry ten pounds, could stand and/or walk, and could sit, for
about six hours in an eight-hour work day, and could push or pull
without limitation. (Tr. at 2 0 7 ) . He found that she could
occasionally climb ramps, stairs, ladders, ropes, and scaffolds;
balance, stoop, kneel, crouch, and crawl. (Tr. at 208.) He
found no manipulative, visual, communicative, or environmental
limitations. (Tr. at 209-10.) D r . Nault concluded with the
following additional comments:
Most recent PE shows normal motor strength bilaterally, normal gait, reflexes 2+ in LEs, coordination is normal. She is obese at 225 Lbs. and 5.2" She takes meds to control her HTN and lipids — no pain medication required.
Her ADLs show that she does light household chores, drives, can walk 1/2 mile;4 says she has trouble climbing stairs. The degree of disability she describes is not reflected in her medical record.
4 According to a report claimant filed with the SSA in December of 2006, her ADLs actually say that she can walk “about 1/4 mile on a flat surface” before needing to stop and rest. (Tr. at 1 2 0 , 125.)
5 (Tr. at 213.)
In February of 2007, Blanchette returned to D r . Van der
Laan. His progress note lists her chief complaints a s : “ 1 .
DISCUSS DISABILITY / 2 . Lots of pain, knees and lower back,
shoulder pain, left handed, grinding motion in back / 3 . In cold
weather breathing difficulty using inhaler tid / 4 . Auras,
stutter / 5 . back pain rad L side.” (Tr. at 214.) Regarding
Blanchette’s back disorder, D r . Van der Laan took the following
history: “58 year old female presents with c/o low back pain in
the midline, gradual onset, dull ache, aggravated with movement,
walks bent over, lower back. c/o radiation of pain to the thigh
on left side.” (Tr. at 215.) D r . Van der Laan’s neurological
examination produced the same results as the one he performed
four months earlier. (Tr. at 216.) His assessments included
hyperlipidemia, back disorder, obesity, screen-diabetes mellitus,
depression with anxiety, DJD, hypertension, and epilepsy. (Tr.
at 214.) As for treatment of Blanchette’s back disorder, D r . Van
der Laan indicated that she was given an MRI, 5 and noted “still a
5 An MRI report dated February 2 7 , 2007, provides as follows:
Findings: Except for early dessication of the L3-L4 disc, the study is normal. The rest of the discs are well hydrated with normal height and signal intensity of the discs is normal, as well as of the spinal cord and bone marrow. A hemangioma is noted in the L2
6 major problem for patient, w some radicular features to suggest
NR impingement.” (Id.) D r . Van der Laan recommended a follow up
visit in three months. (Tr. at 215)
In May of 2007, D r . Shankar Gupta, a non-examining
physician, completed a “Medical Source Statement of Ability to Do
Work-Related Activities (Physical).” D r . Gupta opined that
Blanchette could: lift up to twenty pounds occasionally and up to
ten pounds frequently, carry up to twenty pounds occasionally and
up to ten pounds frequently (Tr. at 2 2 8 ) , sit for six hours at a
time without interruption and six hours total in an eight-hour
work day (Tr. at 2 2 9 ) , stand for four hours at a time and six
hours in an eight-hour work day ( i d . ) , walk for two hours at a
time and six hours in an eight-hour work day ( i d . ) . D r . Gupta
stated that Blanchette did not require the use of a cane to
ambulate. (Id.) He made no findings regarding Blanchette’s
ability to use her hands and feet. (Tr. at 230.) He did find
that Blanchette could occasionally climb stairs, ramps, ladders,
or scaffolds; balance; stoop; kneel; crouch; and crawl. (Tr. at
231.) He also found that Blanchette could occasionally be
vertebral body. The facets have a normal appearance. No findings of spinal or foraminal stenosis are evident.
IMPRESSION: Normal study except for early partial dessication of the L3-L4 disc.
(Tr. at 2 1 8 ) .
7 exposed to moving mechanical parts and extreme cold. (Tr. at
232.) D r . Gupta concluded by stating that Blanchette had the
ability to shop; travel without a companion; ambulate without
using a wheelchair, walker, two canes, or two crutches; walk a
block at a reasonable pace on rough or uneven surfaces; use
standard public transportation; climb a few steps at a reasonable
pace with the use of a single hand rail; prepare a simple meal
and feed herself; care for personal hygiene; and sort, handle, or
use paper or files. (Tr. at 233.)
Blanchette next saw D r . Van der Laan in December of 2007. 6
(Tr. at 2 4 6 ) . His back examination revealed: “Curvature mild.
Mobility limited. SLR: approx 45 degrees bilat. Spine:
tenderness on palpation. SI joints: tender on left side, tender
on right side.” (Tr. at 248.) His neurological examination
revealed: “Sensory: normal. Motor: normal strength bilaterally.
6 D r . Van der Laan characterized Blanchette’s chief complaints as follows:
1 . MED CONDITION/DISABILITY / 2 . Lawyer for disability / 3 . knees, back, rad down R side to knee post, both knees crack standing up / 4 . L hand tingles at night, weaker, L handed / 5 . bowels a problem, diarrhea, pretty usual, no constipation. First a normal BM, then diarrhea — s/p colonos / 6. Fatigue, walking to the end of the driveway 60 to 70 feet / 7 . Feels stiff in the am / 8 . Memory starting to fade / 9. Breathing hard, walking, needs a cart, uses a cane / 1 0 . Car accident — knees into the dashboard / 1 1 . Can only carry 6 lbs.
(Tr. at 246.)
8 Gait: wide based. Babinski: negative. Reflexes: absent knee and
ankle DTRs. Coordination: normal.” (Id.) He made the following
assessments: back disorder, morbid obesity, epilepsy,
hypertension, DJD, knee pain, and irritable bowel syndrome.
(Id.) With respect to Blanchette’s back disorder, under the
heading “Treatment,” D r . Van der Laan stated: “the spine x-ray
shows disc narrowing at L3-L4, as well as the posterior aspect of
L4-5. Changes of DJD are seen involving the L4-5 and L5-S1 facet
joints.” (Id.) With respect to Blanchette’s DJD, under the
heading “Treatment,” D r . Van der Laan wrote: “Diagnostic Imaging:
X ray: Spines, lumbosacral . . . Lumbar spine and knees together
on one report to vdL7 / I do believe the patient is disabled due
7 An X-ray report dated December 2 7 , 2007, provides as follows:
KNEES: AP weightbearing, lateral, condylar notch and Merchant’s views of both knees dated 12/17/07 are compared with previous exam dated 09/17/02. The study demonstrates no evidence of joint effusion involving either knee. The joint spaces are well maintained. There is minimal spurring at the anticular margins of the patella. There is irregular contour of the medial margin of the right patella which is unchanged in appearance from study dated 9/17/02 and is most likely secondary to old trauma. IMPRESSION: Minimal changes of degenerative osteoarthritis involving the patellofemoral space.
LUMBAR SPINE: AP and lateral views of the lumbar spine and a lateral coned down view of the LS junction dated 12/17/07 demonstrate normal alignment. There is maintenance of the normal lumbar vertebral height. There is disc space narrowing at the L3-L4 and poster aspect of the L4-L5 disc spaces. There are changes of degenerative osteoarthritis involving the L4-L5 and L5- S1 facet joints. The pedicles appear intact, no
9 to her advanced djd and poor mobility and ex toler[a]nce.” (Tr.
at 246-47.) Finally, with respect to Blanchette’s irritable
bowel syndrome (“IBS”), under the heading “Treatment,” D r . Van
der Laan wrote: “the combo of diarrhea and then diarrhea, with
cramps relieved in the BR is pretty classic for IBS, and is
moderately disabling.” (Tr. at 247.)
Blanchette saw D r . Van der Laan again on February 5 , 2008.
First on the list of the two chief complaints identified in his
progress note i s : “Go over disability papers, exam.” (Tr. at
241.) The only treatment listed, under the heading “DJD,” is
this: “reviewed in detail the work list and went over what the pt
could and could not do — see the work sheet.” (Id.)
In a “Medical Source Statement of Ability to Do Work-Related
Activities (Physical)” dated February 1 3 , 2008, D r . Van der Laan
opined that Blanchette could: lift up to twenty pounds
occasionally (Tr. at 2 3 5 ) , carry up to ten pounds occasionally
( i d . ) , sit for two hours at a time without interruption and two
hours total in an eight-hour work day (Tr. at 2 3 6 ) , stand for one
hour at a time and one hour in an eight-hour work day ( i d . ) , and
evidence of a destructive process seen. IMPRESSION: changes of degenerative osteoarthritis and degenerative disc disease.
(Tr. at 245.)
10 (inconsistently) walk for one hour at a time but only half an
hour in an eight-hour work day ( i d . ) . D r . Van der Laan further
stated that Blanchette required the use of a cane to ambulate.
(Id.) He refined that finding by noting that: Blanchette could
walk 100 yards without a cane; the cane was medically necessary;
and Blanchette could not use her free hand to carry small objects
while walking without a cane. (Id.) Regarding use of hands and
feet, D r . Van der Laan found that Blanchette could never reach
overhead or push/pull with either hand, that she could
occasionally perform reaching, handling, fingering, and feeling
with both hands,8 and that she could occasionally operate foot
controls with both feet. (Tr. at 237.) He further found that
Blanchette could occasionally balance and stoop but could never
climb stairs, ramps, ladders, or scaffolds; kneel; crouch; or
crawl. (Tr. at 238.) He found that Blanchette could never be
exposed to unprotected heights, extreme cold, or vibrations, but
that she could occasionally be exposed to moving mechanical
parts; operating a motor vehicle; humidity and wetness; dusts,
odors, fumes and pulmonary irritants; and extreme cold. (Tr. at
239.) D r . Van der Laan concluded by stating that Blanchette had
the ability to shop; travel without a companion; ambulate without
8 After characterizing Blanchette’s ability to use her hands, D r . Van der Laan checked the box indicating that Blanchette is righthanded. (Tr. at 237.) Two of his progress notes, however, indicate that she is lefthanded, (Tr. at 2 1 4 , 2 4 6 ) , as does claimant herself (Tr. at 1 2 5 ) .
11 using a wheelchair, walker, two canes, or two crutches; prepare a
simple meal and feed herself; and care for personal hygiene, but
stated that she did not have the ability to walk a block at a
reasonable pace on rough or uneven surfaces; use standard public
transportation; climb a few steps at a reasonable pace with the
use of a single hand rail; or sort, handle, or use paper or
files. (Tr. at 240.) Finally, D r . Van der Laan opined that the
limitations he found had been present since October of 2006.
(Id.)
After a hearing, at which claimant was represented by
counsel, the ALJ issued a decision which included the following
relevant findings:
3 . The claimant has the following severe impairments: degenerative disc disease of the lumbar spine and obesity (20 CFR 404.1520(c)).9
4 . The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
9 The ALJ also noted that “[t]he claimant’s medically determinable . . . impairment of asthma, episodic diarrhea and complaints of depression do not cause more than minimal limitation in the claimant’s ability to perform basic . . . work activities and are therefore nonsevere.” (Tr. at 10.)
12 5 . After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b).
6. The claimant is capable of performing past relevant work as a secretary or as a teacher. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565).
(Tr. at 9-12.) The ALJ explained his decision not to give
controlling weight to D r . Van der Laan’s assessment of
Blanchette’s ability to perform work-related activities in the
following way:
As for the opinion evidence, the undersigned notes that in February 2008 D r . Van der laan asserted that the claimant could sit for only 2 hours total during the day, walk for only 1/2 hour total and stand for only 1 hour total. However, D r . Van der laan did not provide any medically acceptable laboratory or diagnostic testing or any clinical observations to support such significant restrictions. While the opinion of a treating physician is afforded controlling weight when it is consistent with the claimant’s medical records and not inconsistent with other substantial evidence, Dr. Van der laan has not described any basis for the limitations [he] proposed. Moreover, [those] limitations are inconsistent with multiple other medical opinions contained in the medical record (20 C.F.R. 404.1527). In light of evidence that the claimant has remained quite active and has not been described as having severe pain, shortness of breath or other signs of significant illness, the undersigned concludes that she retains the residual functional capacity to perform a full range of light work activity.
(Tr. at 12.)
13 Based upon the foregoing findings, the ALJ ruled that
Blanchette was not under a disability from November 1 0 , 2006,
through the date of the decision, May 3 0 , 2008.
Discussion
Blanchette argues that the ALJ’s decision should be
reversed, and the case remanded, because the ALJ incorrectly
determined that she has the capacity to return to her past
relevant work.
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 question in this
case is whether the ALJ correctly determined that Blanchette was
able to return to her past relevant work and, therefore, not
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 which has lasted or can be expected to last for a continuous period of not less than 12 months.
14 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) .
In order to determine 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 U.S.C. §§ 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 age, is unable to do any other work, the application is granted.
15 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. § 1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v .
Chater, 944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker, 530 F. Supp. 8 0 8 , 810-11) (D. Mass. 1982)). Finally,
In assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) plaintiff’s subjective claims of pain and disability as supported by the testimony of the plaintiff or other witness; and (3) the plaintiff’s educational background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v . Sec’y of HHS, 797
F.2d 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS, 690 F.2d
5 , 6 (1st Cir. 1982)).
Claimant makes nine separate arguments against the validity
of the ALJ’s step-four determination. Those arguments fall into
two categories: (1) challenges to the ALJ’s determination of her
residual functional capacity (“RFC”); and (2) challenges to the
ALJ’s characterization of her past relevant work (“PRW”).
16 A . Residual Functional Capacity
Claimant argues that the ALJ erred in determining that she
has a residual functional capacity for a full range of light work
because h e : (1) did not give controlling weight to her treating
physician’s opinion; (2) did not obtain an RFC assessment from an
examining physician; (3) relied on an incomplete RFC assessment;
(4) mischaracterized the medical record; (5) failed to make
inquiries into her claims of disabling pain; and (6) did not
consider her good work record as evidence of her credibility.
1 . Treating Source Opinion
Claimant argues that the ALJ erroneously dismissed her
treating source’s opinion that she “could sit for only 2 hours
total during the day, walk for only 1/2 hour total and stand for
only 1 hour total.” (Tr. at 12.)
Under the relevant regulations, “[i]f any of the evidence
. . . including any medical opinion(s), is inconsistent with
other evidence . . . [the Commissioner] will weigh all of the
evidence and see whether [he] can decide whether [a claimant] is
disabled.” 20 C.F.R. § 404.1527(c)(2). When weighing medical
opinions, the Commissioner will “[g]enerally . . . give more
weight to opinions from . . . treating sources, since these
sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [a claimant’s]
17 medical impairment(s) and may bring a unique perspective to the
medical evidence . . .” § 404.1527(d)(2). Moreover, “[i]f [the
Commissioner] find[s] that a treating source’s opinion on the
issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant’s] case record,
[the Commissioner] will give it controlling weight.” Id. When
determining whether to give controlling weight to the opinion of
a treating source, the Commissioner considers a number of
factors, including the “[l]ength of the treating relationship and
the frequency of examination,” § 404.1527(d)(2)(I), the “[n]ature
and extent of the treatment relationship,” § 404.1527(d)(2)(ii),
supportability, § 404.1527(d)(3), and consistency with the record
as a whole, § 404.1527(d)(4).
Here, the ALJ correctly determined that D r . Van der Laan’s
opinion was inconsistent with those of Drs. Nault and Gupta.
That supports the ALJ’s decision to diminish the weight he gave
Dr. Van der Laan’s opinion. See 20 C.F.R. § 404 1527(d)(4).
Likewise, the court cannot say that the ALJ erred in
determining that D r . Van der Laan’s opinion was not sufficiently
supported by medically acceptable laboratory or diagnostic
testing or by clinical observations. The medical record includes
18 an X-ray report and an MRI report, which the ALJ noted in his
decision. (Tr. at 10.) But, as the ALJ also noted, the
February, 2007, X-ray report was essentially normal, and the
December, 2007, MRI report indicated minimal abnormalities in
claimant’s knees and, at worst, only moderate abnormalities in
her lumbar spine. (Id.) Moreover, none of D r . Van der Laan’s
progress notes indicate that he ever suggested treatment of any
sort other than diagnostic testing and counseling on diet and
exercise. (Tr. at 2 0 0 , 214-15, 2 4 1 , 246-47). That D r . Van der
Laan prescribed no treatment for claimant’s back disorder further
supports the ALJ’s determination that the limitations D r . Van der
Laan ascribed to that condition were not adequately supported by
medical evidence. See 20 C.F.R. § 404.1527(d)(2)(ii)
(“Generally, the more knowledge a treating source as about your
impairment(s) the more weight we will give to the source’s
medical opinion. We will look at the treatment the source has
provided . . .”) (emphasis added).
Finally, none of the purported medical opinions identified
in the final paragraph of page five of claimant’s memorandum are
actually medical opinions at all. The first two, concerning
claimant’s ability to walk and to carry objects, are D r . Van der
Laan’s reports of claimant’s complaints. That i s , those
notations describe claimant’s symptoms, not D r . Van der Laan’s
assessments o f , or judgments about, her physical condition. See
19 20 C.F.R. § 404.1527(2) (“Medical opinions are statements from
physicians . . . that reflect judgments about the nature and
severity of [a claimant’s] impairment(s) . . . . ” ) ; § 1528(a)
(“Symptoms are [a claimant’s] own description of [her] physical
or mental impairment. [Such] statements alone are not enough to
establish that there is a physical or mental impairment.”). The
third purported medical opinion, D r . Van der Laan’s statement
that claimant is disabled, is also not a medical opinion because
it is an opinion on an issue reserved to the Commissioner. See
20 C.F.R. § 404.1527(e). Because none of the asserted medical
opinions claimant charges the ALJ with dismissing are actual
medical opinions, as that term is used in the Social Security
regulations, the ALJ committed no error in failing to give them
controlling weight.
The ALJ’s decision not to grant controlling weight to D r .
Van der Laan’s opinion is supported by two other considerations.
First, there are a host of internal inconsistencies in D r . Van
der Laan’s records. For example, he described claimant as both
lefthanded (Tr. at 2 1 4 , 246) and righthanded (Tr. at 2 3 7 ) . In
the “Review of Systems” section of one treatment note, he entered
“shortness of breath no” under ENT/RESPIRATORY, while, ten lines
down, he listed “shortness of breath yes” under CARDIOLOGY.
(Tr. at 215.) And, as noted above, in his functional capacity
assessment, D r . Van der Laan characterized claimant as able to
20 walk for one hour at a time, but only half an hour in an eight-
hour work day. (Tr. at 236.) To be sure, those inconsistencies
are only modestly troubling individually, but, collectively, they
do tend to undermine the reliability of D r . Van der Laan’s
substantive opinions.
Moreover, D r . Van der Laan’s treating relationship with
claimant falls toward the low end of the spectrum established by
20 C.F.R. §§ 1527(d)(2)(I) & ( i i ) . The record shows that
claimant visited D r . Van der Laan four times between October of
2006 and January of 2008. In the progress note resulting from
claimant’s first visit, D r . Van der Laan suggested follow up in
six months. (Tr. at 200.) Claimant returned approximately four
months later, shortly after D r . Nault completed his unfavorable
RFC assessment, and first on D r . Van der Laan’s list of chief
complaints is “DISCUSS DISABILITY.” (Tr. at 214.) In the
progress note resulting from claimant’s visit in February of
2007, D r . Van der Laan suggested follow up in three months. (Tr.
at 215.) Claimant did not return for another ten months,
suggesting something less than a pressing need for medical
treatment. In the progress note resulting from that visit, D r .
Van der Laan again began his listing of chief complaints with
references to Blanchette’s disability claim. (Tr. at 246.) As
noted above, D r . Van der Laan never prescribed medication,
physical therapy, surgery, or any other treatment for any of
21 claimant’s medical conditions, including her back disorder. In
all, the picture emerges of a physician with whom claimant
consulted in order to establish a disability claim rather than a
physician who was providing medical treatment.10 That, too,
provides a basis for declining to give controlling weight to D r .
Van der Laan’s opinions.
In sum, the ALJ’s decision not to grant controlling weight
to D r . Van der Laan’s opinion provides no ground for reversal or
remand.
2 . Examining Physician RFC Assessment
Claimant argues that the ALJ violated established First
Circuit precedent by failing to obtain an RFC assessment from an
examining physician.
Claimant cites Heggarty v . Sullivan, 947 F.2d 990 (1st Cir.
1991), for the proposition that “when a claimant shows some
objective symptoms of a medically determinable impairment/s the
Commissioner is required to obtain a residual functional capacity
(RFC) assessment from an examining physician.” Both claimant and
10 In the progress notes for each of claimant’s four visits with D r . Van der Laan, her list of chief complaints was headed not by a medical concern, but with one or more issues related to securing insurance coverage or disability benefits. (Tr. at 199, 214, 2 4 1 , 246.)
22 the Commissioner cite district court cases interpreting Heggarty
that support their contrary views that that case did, see Morales
Colón v . Comm’r of SSA, 245 F. Supp. 2d 395, 399-401 (D.P.R.
2003), or did not, see Delgado-Quiles v . Comm’r of SSA, 381 F.
Supp. 2d 5 , 9 (D.P.R. 2005), require the ALJ to obtain an
examining source RFC assessment.
The Commissioner has the better argument. In Heggarty, the
claimant had a treating physician who saw him once every two
weeks. 947 F.2d at 992. But, the record before the ALJ in that
case contained nothing from the treating physician. Id. In
addition, the claimant in Heggarty was seen by an examining
physician, but that physician did not complete an RFC assessment.
Id. at 993. In the face of that record, the court of appeals
remanded with instructions that the Secretary of Health and Human
Services obtain medical reports from the claimant’s treating
physician. Id. at 997. Regarding the lack of an RFC assessment
from the examining physician, the court of appeals wrote, in a
footnote:
We note that the examining consultant did not fill out an RFC, a practice we already have criticized. See Rivera-Torres v . Secretary of Health and Human Services, 837 F.2d 4 , 6 (1st Cir. 1988) (per curiam) (the Secretary should have a consulting doctor complete an R F C ) .
Heggarty, 947 F.2d at 997 n.1. Two points stand out.
23 First, Heggarty was remanded not for lack of an RFC
assessment from an examining physician, but for lack of medical
records from a treating physician. Here, of course, the ALJ had
both treating-source medical records and a treating-source RFC
assessment. More importantly, both Heggarty and Rivera-Torres
are cases, unlike this one, in which the claimant had, in fact,
been seen by an examining physician. See Heggarty, 947 F.2d at
993; Rivera-Torres, 837 F.2d at 6. Thus, the criticism of the
ALJs in those cases was not that they failed to order an
examination, but that they failed to obtain reports from
physicians who had conducted consultative examinations.
Accordingly, Heggarty provides no basis for reversing the ALJ in
this case. Unlike the ALJ in Heggarty, who lacked both treating-
source medical records and a treating-source RFC assessment, the
ALJ in this case had both. While Heggarty stands for the
proposition that an ALJ should obtain an RFC assessment from a
physician who has conducted a consultative examination, it does
not require an ALJ to order such an examination, especially
where, as here, the record also includes treating-source medical
records and opinions.
3 . Reliance on an Incomplete RFC Assessment
Claimant next argues that the ALJ’s determination that she
was capable of performing her past secretarial work was not
supported by substantial evidence because secretarial work
24 requires frequent reaching, handling, and fingering, and D r .
Gupta found her capable of the full range of light work, without
completing the portion of the medical source statement form that
pertains to use of the hands, including reaching, handling, and
fingering.
The ALJ’s decision on this issue was supported by
substantial evidence. While it is true that D r . Gupta did not
fill out that part of the medical source statement form
pertaining to use of the hands, which addresses reaching,
handling, fingering, feeling, and pushing/pulling (Tr. at 2 3 0 ) ,
he did state that claimant retained the residual functional
capacity to sort, handle, and use paper and files (Tr. at 2 3 3 ) .
That opinion presupposes a predicate opinion that claimant had
the capacity to perform reaching, handling, and fingering.
Moreover, D r . Nault, the other non-examining physician, opined in
his RFC assessment that the record established no manipulative
limitations, i.e., limitations on reaching, handling, fingering,
and feeling. (Tr. at 209.) D r . Van der Laan offered a contrary
opinion regarding claimant’s ability to use her hands, (see T r .
at 2 3 7 ) , but it is well established that “the resolution of
conflicts in the evidence is for the [Commissioner], not the
courts.” Irlanda Ortiz, 955 F.2d at 769 (citations omitted).
25 4 . Characterization of the Medical Record
Claimant identifies three factual findings by the ALJ which,
in her view, are refuted by her medical records. She then argues
that because the ALJ’s decision rests on those assertedly
unsupported factual findings, his determination of her RFC is not
supported by substantial evidence and must be reversed.
a. Irritable Bowel
Claimant argues that the ALJ erred in his finding that
“[s]he has never described severe episodes of irritable bowel
syndrome to a treating or examining source . . .” (Tr. at 12.)
She points to a progress note in which D r . Van der Laan discussed
her irritable bowel syndrome (see T r . at 2 4 7 ) , and argues that if
he mentioned her IBS, she, necessarily, described her IBS
symptoms to him. On that basis, claimant contends that “the
Decision’s statement that [she] never described symptoms of IBS
to a treating source is inaccurate and not supported by
substantial evidence.” The Commissioner points out, correctly,
that the ALJ did not say that claimant never described symptoms
of IBS, but only that she never described “severe episodes,” and
counters that the ALJ’s finding is supported by substantial
evidence because the medical record does not, in fact, contain
any reports by claimant of “severe episodes of irritable bowel
syndrome.” This is a dispute over semantics, and what is or is
not a “severe” episode of IBS. It is not a dispute about an
26 unsupported factual finding by the ALJ sufficient to require
reversal of his decision.
b . Severe Pain, Shortness of Breath, Etc.
Claimant also argues that the ALJ erred by finding that she
“has not been described as having severe pain, shortness of
breath or other signs of significant illness.” (Tr. at 12.) The
problem with claimant’s argument, however, is that the various
descriptions of her physical condition to which she refers are
not medical observations but, rather, D r . Van der Laan’s reports
of her own complaints to him regarding her symptoms. See 20
C.F.R. § 1528(a). The point of the ALJ’s statement was that no
medical source has described her as having severe pain or
shortness of breath. That is accurate.
To take the example of shortness of breath, D r . Van der
Laan’s February 7 , 2007, progress note says both “shortness of
breath no” and “shortness of breath yes” under separate
subheadings of the general heading “Review of Systems.” (Tr. at
215.) But, under the heading “Physical Examination,” subheading
“Chest,” D r . Van der Laan reports: “Shape and expansion: normal.
Breath sounds: normal. Percussion: normal. Rales: n o . Wheezes:
no.” (Id.) Similarly, D r . Van der Laan’s February 5 , 2008,
progress note reports, under Review of Symptoms: “shortness of
breath yes, worse with exertion, relieved with rest, gradually
27 getting worse, associated with wheeze,” (Tr. at 2 4 2 ) , but also
reports, under Physical Examination: “CHEST: / Shape and
expansion: normal. Breath sounds: normal. Percussion: normal.
Rales: n o . Wheezes: no.” (Tr. at 241.) In other words, D r . Van
der Laan reported both claimant’s complaints of shortness of
breath and the results of his physical examination. But, only
the former contain descriptions of shortness of breath. Thus,
the ALJ’s finding was supported by substantial evidence. D r . Van
der Laan did not clinically describe claimant as suffering from
shortness of breath. And, again, a claimant’s own description of
a physical impairment, by itself, is insufficient to establish
the existence of such an impairment. See 20 C.F.R. §
404.1528(a).
c. Use of a Cane
Claimant also argues that the ALJ erred by finding that
“[i]n terms of the claimant’s alleged need for a cane to
ambulate, [the] medical record contains no evidence that this has
been prescribed.” (Tr. at 12.) D r . Van der Laan gave his
opinion that claimant’s cane was “medically necessary,” (Tr. at
2 3 6 ) , after she started using i t , seemingly on her own. But,
there is no evidence that h e , or any other physician, prescribed
its use. Thus, the ALJ’s finding is supported by substantial
evidence. Whether or not the lack of a prescription for the cane
is significant is another question; here, all that is at issue is
28 the ALJ’s finding that the cane was not prescribed, and that
finding is adequately supported.
5 . Failure to Inquire
In reliance on Corchado v . Shalala, 953 F. Supp. 1 2 , 15-16
(D. Mass. 1996), claimant argues that the ALJ violated
“established First Circuit authority” by failing to solicit
information from her, at her hearing, concerning the effects of
pain on her activities of daily living. The Commissioner
counters that an ALJ is not required to re-question a claimant on
issues covered in questioning by her own attorney and that, in
any event, claimant does not suggest any question the ALJ could
have asked that would have produced information not already
available in the record.
According to Social Security Ruling (“SSR”) 96-7p, 1996 WL
374186 (S.S.A.), “an individual’s statement(s) about his or her
symptoms11 is not in itself enough to establish the existence of
a physical or mental impairment or that the individual is
disabled.” Id. at * 2 . When “symptoms, such as pain, fatigue,
shortness of breath, weakness, or nervousness,” id., are alleged,
SSR 96-7p prescribes a two-step evaluation process:
11 “A symptom is an individual’s own description of his or her physical or mental impairment(s).” SSR 96-7p, 1996 WL 374186, at * 2 .
29 * First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) – i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques – that could reasonably be expected to produce the individual’s pain or other symptoms. . . . If there is no medically determinable physical or mental impairment(s), or if there is a medically determinable physical or mental impairment(s) but the impairment(s) could not reasonably be expected to produce the individual’s pain or other symptoms, the symptoms cannot be found to affect the individual’s ability to do basic work activities. * Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual’s pain or other symptoms has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work activities. For this purpose, whenever 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.
Id. Furthermore:
When additional information is needed to assess the credibility of the individual’s statements about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual’s statements. 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 CFR 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 individual’s statements:
30 1 . The individual’s daily activities;
2 . The location, duration, frequency, and intensity of the individual’s pain or other symptoms;
3 . Factors that precipitate and aggravate the symptoms;
4 . The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5 . Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7 . Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms.
Id. at * 3 .
In claimant’s view, this case should be remanded because the
ALJ did not question her about the seven factors listed in SSR
96-7p. However, she was represented by counsel, and “when [a]
claimant is represented by counsel at the administrative hearing,
the ALJ should ordinarily be entitled to rely on the claimant’s
counsel to structure and present claimant’s case in a way that
the claimant’s claims are adequately explored.” Hawkins v .
Chater, 113 F.3d 1162, 1167 (10th Cir. 1997); see also Sears v .
Bowen, 840 F.2d 3 9 4 , 402 (7th Cir. 1988) (“an ALJ is entitled to
31 presume that a claimant represented by counsel in the
administrative hearings has made [her] best case”).
Moreover, the SSR 96-7p factors were adequately addressed in
claimant’s testimony before the ALJ, and the medical records
provided further information on several of them.12 Furthermore,
as the Commissioner points out, claimant does not say what more
the ALJ would have learned from the questioning she says should
have been conducted. See Nelson v . Apfel, 131 F.3d 1228, 1235
(7th Cir. 1997 (“Mere conjecture or speculation that additional
evidence might have been obtained in the case is insufficient to
warrant remand.”) (citation omitted); Shannon v . Chater, 54 F.3d
484, 488 (8th Cir. 1995) (“reversal due to failure to develop the
record is only warranted where such failure is unfair or
prejudicial”); Born v . Sec’y of HHS, 923 F.2d 1168, 1172 (6th
Cir. 1990) (noting, in decision affirming determination of non-
disability over argument that ALJ failed to properly develop the
record, that “claimant . . . failed to suggest what other
information could have been brought forth by further questioning
12 The existence of sufficient evidentiary support in the administrative record for the ALJ’s credibility determination would appear to distinguish this case from Corchado, 935 F. Supp. 1 2 , on which claimant relies. Corchado was remanded for further development of the record, in order to allow the ALJ to make a proper inquiry under the principles established in Avery, 797 F.2d 1 9 . But where, as here, the record adequately supports the ALJ’s credibility determination, notwithstanding the lack of an Avery colloquy at the hearing, there are no grounds for remanding the case for further proceedings before the ALJ.
32 of him which would have enhanced a determination of disability”).
In sum, the ALJ’s credibility determination is supported by
substantial evidence in the record that directly addressed the
SSR 96-7p factors.
6. Claimant’s Good Work Record as Evidence of Credibility
Claimant’s final argument concerning the ALJ’s RFC
determination is that this court should adopt a rule from the
Second Circuit under which “[a] claimant with a good work record
is entitled to substantial credibility when claiming an inability
to work because of a disability.” Rivera v . Schweiker, 717 F.2d
719, 725 (2d Cir. 1983) (citing Singletary v . Sec’y of HEW, 623
F.2d 2 1 7 , 219 (2d Cir. 1980)); see also Burnside v . Apfel, 223
F.3d 8 4 0 , 845 (8th Cir. 2000) (“A consistent work record may
support the credibility of a claimant’s subjective complaints.”)
(citing Singh v . Apfel, 217 F.3d 586 (8th Cir. 2000)). To
demonstrate that her case merits application of the Rivera rule,
claimant lists her annual earnings from 1988 through 2006, as
evidence of her “excellent work record over the 19 years prior to
2007.” The Commissioner points out that claimant “cites no First
Circuit case law accepting the proposition that cessation of
work, due to retirement following a long working career, is a
factor that is entitled to great weight when weighing a
claimant’s credibility.”
33 In Singletary, on which the Rivera court relied, the court
of appeals explained:
Mr. Singletary does show a life history of hard labor performed under demanding conditions over long hours. His work record shows employment by nationally known racing stables. These animals, both trotters and pacers, are very valuable. Their care is not entrusted to malingerers or goldbricks. His prior work history justifies the inference that when he stopped working he did so for the reasons testified t o .
Singletary, 623 F.2d at 219. Here, of course, claimant does not
contend that she stopped working because of her disability. She
left her position as a high-school attendance secretary in June
of 2006, continued working for her husband’s business for another
five months, and claims an onset date of November 1 0 , 2006. In
other words, she says she became disabled five months after she
stopped working as an attendance secretary. Because claimant
does not contend that she stopped working because of her
disability, the ALJ in this case did not have to determine why
claimant left her last job, which is the question that motivated
the Singletary court to take the claimant’s work record into
account. The lack of any question concerning claimant’s reasons
for leaving her job as an attendance secretary distinguishes this
case from Singletary, and diminishes the relevance of claimant’s
work record. A good work record is certainly inconsistent with
goldbricking, but is hardly inconsistent with retirement, which
34 is how claimant characterized her departure from her job as an
attendance secretary. (See T r . at 2 0 0 , 2 1 4 , 2 4 2 , 247.)
B . Past Relevant Work
Claimant argues that the ALJ erred with regard to her past
relevant work by: (1) relying on vocational expert testimony that
misidentified her prior relevant work (claimant’s argument v i i ) ;
(2) determining that she had the capacity to perform a job, i.e.,
teacher, that she never held (argument v ) ; and (3) failing to
give her past relevant work the consideration it was due under
Rams v . Chater, 989 F. Supp. 309 (D. Mass. 1997) (argument i v ) .
The Commissioner counters by: (1) arguing that the vocational
expert’s asserted misidentification of claimant’s past relevant
work was insignificant because the job title claimant says the
expert should have used has the same mental and physical
requirements as the ones the expert did use; (2) conceding that
claimant’s past relevant work was not as a teacher or teacher’s
aide; and (3) distinguishing Rams.
As noted above, the ALJ determined that claimant retained
the residual functional capacity to perform her past relevant
work. In support of that finding, he wrote:
In comparing the claimant’s residual functional capacity with the physical and mental demands of this work [i.e., “past relevant work as a secretary or as a teacher”], the undersigned finds that the claimant is
35 able to perform it as generally performed consistent with Vocational Consultant Christine Spaulding’s opinion contained in the record . . . .
(Tr. at 12.) Christine Spaulding was presented with a
hypothetical question based on D r . Nault’s RFC assessment and
claimant’s description of her past relevant work as recorded on
the Form SSA-3368 (“Disability Report - Adult”) she filed with
the SSA. (Tr. at 98-100.) In her Disability Report, claimant
stated that she worked from February of 1986 through June of 2006
under the job title “secretary/substitute teacher.” (Tr. at 99.)
After comparing D r . Nault’s RFC assessment with claimant’s own
description of her job as a secretary/substitute teacher,
Spaulding gave the following answer to a hypothetical question
concerning claimant’s ability to perform her past relevant work:
Yes, this individual would be able to perform her PRW of Secretary (DOT 201.362-030, SVP 6, Strength: Sedentary) and Teacher Aide/Substitute Teacher (DOT 249.367-074, SVP 3 , Strength: Light) as they were performed and as they are typically performed in the national economy.
(Tr. at 142.)
Claimant argues that the ALJ committed two legal errors: (1)
relying on vocational information she calls “erroneous” because
the vocational expert addressed her ability to perform work as a
“secretary” and “teacher aide/substitute teacher” rather than
“school secretary,” and (2) referring to her past relevant work
36 as “teacher.” Claimant’s argument is unavailing. The vocational
expert considered the job requirements for “secretary” and
“substitute teacher” because those were the terms claimant
herself entered under the heading “Job Title” in Section 3 of her
SSA-3368 form. (Tr. at 99.) Thus, Spaulding’s opinion contained
no “erroneous vocational information,” and it was hardly a legal
error for the ALJ to rely on an opinion in which the vocational
expert characterized claimant’s past relevant work in exactly the
terms claimant herself used. The ALJ’s reference to claimant’s
past relevant work as “teacher” is also rooted in the information
claimant gave to the SSA and, therefore, provides no ground for
reversal.
In a Form SSA-3369-BK (“Work History Report”) that claimant
appears to have filed some time after she filed the SSA-3368 on
which the vocational expert relied, she used the terms “School
Secretary” and “Attendance Secretary,” and listed those as two
separate jobs rather than a single job, as she had in her SSA-
3368. (Tr. at 129.) In other words, claimant described her past
work differently in the Work History Report than she did in the
Disability Report.13 But, even if the vocational expert and the
13 In addition to dividing claimant’s work for schools into two different job titles, with different “dates worked,” the Work History Report includes the first report that any of claimant’s past relevant work involved lifting weights of more than ten pounds. (Tr. at 9 9 , 130.)
37 A L J had erred in their characterizations of claimant’s past
relevant work – and they did not – claimant has not identified
any way in which she was prejudiced by any such error, given the
substantial similarity of the job requirements for “secretary”
and “school secretary.” See EMPLOYMENT & TRAINING ADMIN., U . S . D E P ’ T
OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES 171 (4th ed. rev. 1991).
Claimant’s final argument is that the A L J failed to conduct
an adequate particularized inquiry into the demands of her past
relevant work. As an example, she notes that the A L J found her
capable of performing her P R W , even though her Work History
Report indicated that when she worked as a school secretary, she
was sometimes required to lift up to fifty pounds, a requirement
plainly precluded by the R F C limitations the A L J found.
Claimant’s argument misses several key points.
First, the A L J expressly referred to the vocational expert’s
opinion, and the vocational expert expressly described all the
demands of claimant’s past relevant work, as claimant reported
them in her SSA-3368 form. Regarding the exertional requirements
of claimant’s P R W , she indicated in her Disability Report that as
a secretary/substitute teacher, she never had to lift more than
ten pounds. The occasional lifting of up to fifty pounds first
entered the record in Claimant’s subsequent Work History Report,
but even then, only in the context of the school secretary job
38 claimant left in June of 2004. According to that same report,
when she worked as an attendance secretary, from September of
2004 through June of 2006, the heaviest weight she lifted was
less than ten pounds, an exertional requirement plainly in line
with her RFC. Thus, no additional inquiry was necessary for the
ALJ to make an adequately supported finding that claimant
retained the RFC to perform her past relevant work as a high-
school attendance secretary.
Finally, claimant’s reliance on Rams is misplaced for
several reasons. To begin, in this case, the Commissioner does
not advance either of the two arguments that were offered in Rams
to support the ALJ’s step-four determination but rejected by the
court.14 Beyond that, Rams is factually distinguishable. The
ALJ in Rams made no finding concerning the claimant’s RFC, see
989 F. Supp. at 311-12, 319, which precluded her from properly
comparing the claimant’s RFC to the demands of her past relevant
14 Those discredited arguments were: (1) “that the [claimant’s] ability to perform her past job for very short periods at any given time, or ‘on a part-time basis,’ constitute, as a matter of law, a step-four determination supported by substantial evidence that plaintiff can perform her past relevant work,” 989 F. Supp. at 3 1 8 , and (2) “that [an] RFC evaluation [by a non-examining state agency physician] and [an consultative examiner’s] observations are substantial evidence that supports a determination that plaintiff is able to perform ‘medium’ work, and that, because her past work would constitute ‘medium’ work under the regulations, [claimant] was able to perform her past relevant work,” id. at 319.
39 work, see id. at 319-20. Moreover, the ALJ in Rams appears not
to have had the benefit of the opinion of a vocational expert.
Here, by contrast, the ALJ did make a finding concerning
claimant’s RFC. And, after considering the vocational expert’s
opinion, which incorporated claimant’s description of her past
relevant work, the ALJ determined that claimant’s RFC did not
preclude her from performing her PRW. In other words, the ALJ in
this case met his obligation to “determine the claimant’s
residual functional capacity (RFC) and the physical and mental
demands of the work that the claimant has done in the past.” Id.
at 318 (citing 20 C.F.R. § 404.1520(e); Santiago v. Sec’y of HHS,
944 F.2d 1, 5 (1st Cir. 1991)). In short, there is nothing in
Rams that would justify remanding this case.
Conclusion
For the reasons given, claimant’s motion to reverse and
remand (document no. 7) is denied, and the Commissioner’s motion
for an order affirming the ALJ’s decision (document no. 9) is
granted. The clerk of the court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe ^Chief Judge June 9, 2009
40 cc: David J. Strange, Esq. Gretchen L . Witt, Esq.
Related
Cite This Page — Counsel Stack
2009 DNH 077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanchette-v-ssa-nhd-2009.