UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Brian Zackowski, Claimant
v. Case No. 17-cv-709-SM Opinion No. 2018 DNH 184 Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), claimant,
Brian Zackowski, moves to reverse or vacate the Acting
Commissioner’s decision denying his application for Disability
Insurance Benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 423, and Supplemental Security Income
Benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383(c).
The Acting Commissioner objects and moves for an order affirming
her decision.
For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.
1 Factual Background
I. Procedural History.
In 2012, Zackowski filed an application for Disability
Insurance Benefits, alleging that he had been unable to work
since December 28, 2010, due to a spine injury and depression.
Administrative Record (“Admin. Rec.”) at 155, 159. That
application was denied (Admin. Rec. at 74), and claimant
requested a hearing before an Administrative Law Judge (“ALJ”)
(Admin. Rec. at 87). On October 31, 2013, Zackowski appeared
without counsel before an ALJ, along with a vocational expert,
who considered claimant’s application de novo. Admin. Rec. at
23-71. Two weeks later, the ALJ issued his written decision,
concluding that Zackowski was not disabled, as that term is
defined in the Act, at any time prior to the date of his
decision. Id. at 10-22.
Zackowski sought review of the ALJ’s decision by the
Appeals Council. Admin. Rec. at 9. By notice dated June 24,
2015, the Appeals Council denied Zackowski’s request for review.
Admin. Rec. at 1-4. Accordingly, the ALJ’s denial of
Zackowski’s application for benefits became the final decision
of the Acting Commissioner, subject to judicial review. Id. at
1.
2 Zackowski then filed for federal district court review of
the Commissioner’s decision. See Admin. Rec. at 393-394.
Prior to the court’s review, however, the Commissioner, through
her attorney, assented to Zackowski’s motion to remand the
decision for further proceedings, under 42 U.S.C. § 405(g). On
June 2, 2016, the Appeals Council vacated the ALJ’s earlier
decision, and remanded the case to the ALJ for further
consideration and evaluation of the treating source opinions in
the record. 1
On July 11, 2017, the ALJ held a second hearing at which
Zackowski, his attorney, and a vocational expert appeared.
Admin. Rec. at 344-384. At the hearing, plaintiff amended his
alleged onset date of disability to February 6, 2012. Admin.
Rec. at 352. On September 15, 2017, the ALJ issued his written
decision, concluding that Zackowski was not disabled, as that
term is defined in the Act, at any time prior to the date of the
decision. Id. at 326-337. Zackowski did not file any written
exceptions to the ALJ’s decision with the Appeals Council, and,
the ALJ’s decision thus became the final decision of the
Commissioner.
1 On March 20, 2015, Zackowski filed a separate application for Supplemental Security Income (“SSI”). See Admin. Rec. at 564. That application was consolidated with claimant’s application for Disability Insurance Benefits on remand.
3 Zackowski subsequently filed a timely action in this court,
asserting that the ALJ’s decision is not supported by
substantial evidence. Zackowski then filed a “Motion for Order
Reversing Decision of the Commissioner” (document no. 7). In
response, the Acting Commissioner filed a “Motion for Order
Affirming the Decision of the Commissioner” (document no. 9).
Those motions are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a statement of stipulated facts which, because it is
part of the court’s record (document no. 10), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. “Substantial Evidence” and Deferential Review.
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
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. §§ 405(g),
4 1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something
less than a preponderance of the evidence, so 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). See also Richardson v. Perales, 402
U.S. 389, 401 (1971).
II. The Parties’ Respective Burdens.
An individual seeking SSI and DIB 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 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). 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 &
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
5 burden, the claimant must prove, by a preponderance of the
evidence, that his impairment prevents him from performing his
former type of work. See Gray v. Heckler, 760 F.2d 369, 371
(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982). If the claimant demonstrates an inability to
perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
he can perform, in light of his age, education, and prior work
experience. See Vazquez v. Secretary of Health & Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. §§
404.1512(f) and 416.912(f).
In assessing a disability claim, the Commissioner considers
both 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, and work experience. See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
6 (1st Cir. 1982). Ultimately, a claimant is disabled only if
his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his
6 previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if 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 Acting Commissioner’s motion to affirm
Background - The ALJ’s Findings
In concluding that Zackowski was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, the ALJ first determined that
Zackowski had not been engaged in substantial gainful employment
at any time relevant to the decision. Admin. Rec. at 328.
Next, he concluded that Zackowski suffers from the following
severe impairment: “facet disease of the lumbar spine.” Id. at
329. The ALJ also considered Zackowski’s “essential tremor
affecting his left upper extremity” and his adjustment disorder
with depressed mood, and determined that neither impairment had
7 “more than minimal effect on his ability to perform basic work
functions,” and therefore were not severe. Id. at 331-332. The
ALJ then determined that Zackowski’s impairments, regardless of
whether they were considered alone or in combination, did not
meet or medically equal one of the impairments listed in Part
404, Subpart P, Appendix 1. Id. at 332. Zackowski does not
challenge any of those findings.
Next, the ALJ concluded that Zackowski retained the
residual functional capacity (“RFC”) to perform the exertional
demands of light work, as defined in 20 CFR 404.1567(b) and
416.967(b), “except he is limited from standing, walking or
sitting for more than 30 minutes at one time and for more than 4
hours total during an 8-hour work day.” Admin. Rec. at 333. The
ALJ further noted that claimant can “occasionally stoop, crouch,
balance, kneel and climb stairs,” “occasionally push, pull and
work overhead,” and “cannot climb ladders/ropes or scaffolds.”
Id. In light of those restrictions, the ALJ concluded that
claimant was not capable of returning to his prior job. Id. at
335.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform. Relying on
the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,
App. 2, and the testimony of the vocational expert at the
8 October 31, 2013, hearing, the ALJ concluded that “there are
jobs that exist in significant numbers that the claimant can
perform.” Admin. Rec. at 336. The ALJ then concluded that
claimant was not “disabled,” as that term is defined in the Act,
through the date of his decision.
Discussion
Claimant challenges the ALJ’s decision, asserting that the
ALJ erred in: (i) evaluating the opinion evidence in the record;
(ii) assessing claimant’s testimony regarding his symptoms and
limitations; and (iii) failing to incorporate all non-exertional
limitations from his RFC findings into the hypothetical
questions posed to the vocational expert.
I. Opinion Evidence of Record
Claimant first argues that the ALJ’s evaluation of the
opinion evidence in the record was erroneous. More
specifically, Zackowski takes issue with the ALJ’s reliance on
the September 27, 2012, assessment of reviewing state agency
consultant Dr. Hugh Fairley, and the January, 2014, opinion of
consultative examiner Dr. Peter Loeser. Instead, says
Zackowski, the ALJ should have relied upon the November, 2015,
opinion of non-examining physician Dr. Jonathan Jaffe, and the
February, 2012, functional capacity assessment of Brent Meserve
9 (which, Zackowski argues, the ALJ was specifically directed to
evaluate upon remand), as well as the opinions of claimant’s
treating physicians, Dr. Robert McLellan and Dr. David Coffey.
A. Opinions of Drs. Fairley and Loeser
Zackowski does not clearly articulate why the ALJ’s
reliance on the opinions of Drs. Fairley and Loeser was
problematic, instead arguing that the ALJ should have relied on
other opinion evidence in the record. With respect to the
opinion of Dr. Fairley, Zackowski does point out that the
opinion was issued approximately five year before the ALJ’s
decision. So, to the extent Zackowski is arguing that the ALJ
should not have relied on Dr. Fairley’s opinion because it was
based on a partial record (and, again, whether Zackowski is, in
fact, making that argument is not clear from his briefing, as he
cites no authority or any record evidence to support that
position), that fact alone would not preclude the ALJ from
relying on Dr. Fairley’s assessment. As the court has
previously stated:
It can indeed be reversible error for an administrative law judge to rely on an RFC opinion of a non-examining consultant when the consultant has not examined the full medical record.” Strout v. Astrue, Civil No. 08– 181–B–W, 2009 WL 214576, at *8 (D. Me. Jan. 28, 2009) (citing Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)). However, an ALJ may rely on such an opinion where the medical evidence post-dating the reviewer's assessment does not establish any greater limitations,
10 see id. at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly inconsistent” with, the reviewer's assessment. See Torres v. Comm'r of Social Security, Civil No. 04–2309, 2005 WL 2148321, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771, 2003 WL 21954208, at *4 n.5 (5th Cir. 2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered medical records dated after the non-examining source's report).
Ferland v. Astrue, No. 11-CV-123-SM, 2011 WL 5199989, at *4
(D.N.H. Oct. 31, 2011).
Here, the ALJ reviewed the entirety of Zackowski’s medical
records, including records post-dating Dr. Fairley’s 2012
opinion, and determined that Dr. Fairley’s opinion was
“consistent with the claimant’s varied daily activities as
reported in his Function Report and as documented in his various
medical records.” Admin. Rec. at 335. The record supports that
conclusion. See, e.g., Admin. Rec. at 608 (Apr. 7, 2016,
assessment of Dr. McLennan stating, “I see no significant change
in his exam from multiple exams in the past”); id. at 605(July
30, 2015, assessment of Dr. McLennan stating same). And, as the
Acting Commissioner points out, Zackowski points to no evidence
in the record that suggests a sustained worsening of his
11 impairment following Dr. Fairley’s September, 2012, review of
Zackowski’s medical records. Put differently, Zackowski fails
to point to any medical evidence after September, 2012, that
establishes “greater limitations” than those assessed by Dr.
Fairley. Ferland, 2011 WL 5199989, at *4. Accordingly, the ALJ
did not err in relying on Dr. Fairley's report in his RFC
analysis.
With respect to the ALJ’s reliance on Dr. Loeser’s January,
2014, and October, 2015, opinions, Zackowksi asserts that the
ALJ gave the opinions significant weight. However, he does not
appear to argue that the ALJ erred in doing so. Without more,
the court can find no error in the weight given by the ALJ to
the opinions of Dr. Loeser.
B. Opinion of Dr. Jaffe
Zackowski argues that the ALJ erroneously did not address
the November, 2015, opinion of non-examining physician Dr.
Jonathan Jaffe. After reviewing claimant’s medical records, Dr.
Jaffee opined that he was capable of occasionally lifting or
carrying up to 10 pounds; standing or walking up to four hours;
sitting for a total of six hours (in an eight-hour work day);
could never climb ladders, ropes or scaffolds; and had limited
manipulative limitations with respect to reaching and handling.
Thus, the majority of Dr. Jaffe’s opinion is consistent with the
12 ALJ’s RFC, except Jaffe’s lifting limitation is 10 pounds, not
20 pounds.
Zackowski correctly contends that ALJ did not reference Dr.
Jaffe’s opinion in his order. However, the ALJ did expressly
indicate that he carefully considered “all the evidence,” and
“[a]n ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence
submitted by a party.” N.L.R.B. v. Beverly Enterprises-
Massachusetts, Inc., 174 F.3d 13, 26 (1st Cir. 1999). Dr. Jaffe
is not one of claimant’s treating physicians. Therefore, the
regulations do not require that the ALJ give “good reasons” for
the weight ascribed to Dr. Jaffe’s opinion. 20 C.F.R. § 416.927
(“We will always give good reasons in our notice of
determination or decision for the weight we give your treating
source’s medical opinion.”) (emphasis added).
However, even assuming the ALJ erred by failing to address
Dr. Jaffe’s opinion in his order, Zackowski’s argument is
unpersuasive, because he fails to sufficiently demonstrate that
further consideration of Dr. Jaffe’s opinion would likely change
the outcome. As the Commissioner points out, Dr. Jaffe’s
opinion “only bolsters a finding that [claimant] was not
disabled.” Def.’s Mem. In Supp. Of Mot. to Affirm at 7.
13 As discussed, the majority of Dr. Jaffe’s opinion is
consistent with the RFC, with the exception of the lifting and
carrying limitations. And, Zackowski offers no explanation as
to how those lifting and carrying limitations would alter the
vocational analysis, and result in a finding of disability. The
record suggests the opposite: based on Dr. Jaffe’s opinion, the
disability adjudicator/examiner determined that Zackowski was
capable of “sedentary work,” and that: “all potentially
applicable Medical-Vocational Guidelines would direct a finding
of ‘not disabled’ given the individual’s age, education and
RFC.” Admin. Rec. at 431 (emphasis added). In other words,
even if the ALJ had adopted Dr. Jaffe’s RFC in its entirety,
that would not alter or impact the ALJ’s conclusion that
claimant was not disabled. Claimant therefore fails to
demonstrate that remand is warranted on that basis.
C. Meserve Functional Capacity Assessment
Zackowski further argues that the ALJ erred by giving
“limited weight” to the February, 2012, Functional Capacity
Assessment completed by Brent Meserve, which the ALJ was
specifically directed to evaluate upon remand. Claimant
contends that the ALJ’s reasoning ignores the objective testing
that was the basis for Meserve’s assessment, and that the ALJ
14 fails to adequately identify inconsistencies between Meserve’s
assessment and the testing results.
On February 6, 2012, at the requests of claimant’s treating
physician, Dr. Robert McClellan, Brent Meserve performed a
Function Capacity Evaluation of the claimant. Admin. Rec. at
250. Dr. McClennan asked Meserve to evaluate Zackowski’s work
capacity, including his level of physical effort, whether his
reports of pain and disability were reliable, and what physical
demand level should be used for employment planning purposes.
Admin. Rec. at 251. Merserve reported the “presence of near
full levels of physical effort on Mr. Zackowski’s behalf.” Id.
He also reported the “presence of minor inconsistenc[ies] to the
reliability and accuracy of Mr. Zackowski’s reports of pain and
disability,” based on his accuracy with “a few of his physical
tolerance estimates,” as well as his rating of his ability to
perform work tasks (Zackowski rated himself as “sedentary,” “but
actually performed activities during physical testing in the
light to medium range.”) Id. Meserve concluded, based on the
results of his testing, that Zackowsi could tolerate “light
physical demand level work into the medium range with occasional
lifting floor to knuckle 33 pounds, knuckle to shoulder 28
pounds and shoulder to overhead 33 pounds,” on a part-time
15 basis, four hours per day, five days a week. Admin. Rec. at
252-253.
The ALJ stated the following, concerning Meserve’s
assessment:
I have considered the specific limitations cited in the February 2012 functional capacity assessment. This assessment provides no objective basis for the lifting and stooping limitations opined other than the claimant’s subjective complaints. However, as described above, there is strong evidence in this case from multiple sources to indicate that his complaints are overstated. Further, the limitations assessed in February 2012 are inconsistent with the claimant’s functioning even during testing as where the claimant sat uninterrupted for 26 minutes during testing and for almost two hours during the [four]-hour examination. I also note, incidentally, that the claimant sat for even longer uninterrupted period during his administrative hearing. For these reasons, I have afforded only limited weight to the February 2012 functional capacity opinion.
Admin. Rec. at 334-335 (internal citations omitted).
Claimant’s criticism of Meserve’s assessment is
unpersuasive. The ALJ adequately explained his reasons for
discounting Meserve’s assessment, and the record supports his
findings. See, e.g., Admin Rec. at 311 (Jan. 17, 2014,
examination notes from Dr. Peter Loeser, stating: “The patient
does walk with his torso flexed at the hips to about 20 degrees
when demonstrating his ability to walk, but this was not the
case when the patient departed from the examination room
following the conclusion of the visit,” and “Though the patient
16 states these symptoms are having a significant impact on overall
function, there is insufficient evidence to fully support this
conclusion.”); Admin. Rec. at 598-600 (Apr. 17, 2014,
examination notes from Dr. Vincent Codispoti, stating: “I
suspect a non-organic component based on some positive Waddell’s
signs on exam (overreaction, tenderness).”); Admin. Rec. at 650-
651 (Feb. 18, 2016, examination notes from Dr. Lawrence Rush,
stating: “He has also been diagnosed with what has felt to have
been facet syndrome, although it is hard for me to believe that
this would cause the degree of disability that he is
reporting.”); Admin. Rec. at 672-674 (Jan. 30, 2017, appointment
notes from Dr. Rush from claimant’s visit to “discuss disability
paperwork.” Rush also expressed some reservation regarding
claimant’s disability forms: “This continues to be a very
difficult situation. I am going to refer him to a local pain
management specialist as we really need to get further
information on this gentleman. . . He had also given me
something from the New Hampshire Fish and Game to let him use a
crossbow, but on the form it said permanent[ly] disabled and I
cannot say this.”); Admin. Rec. at 711-714 (Feb. 27, 2017
appointment notes from neurologist Dr. Christopher Martino,
noting inconsistencies in claimant’s examination, and stating:
“Some functional elements on examination with times when the
tremor is present[, and] times when the tremor is not present.
17 There are also times when he does finger-nose with ataxia and
accomplishes finger-nose without ataxia. The variation and
inconsistencies on examination suggest a functional overlay.”)
(emphasis added). Moreover, Meserve’s assessment itself notes
the limitations of its reliability, stating: “It needs to be
remembered that the evaluation occurs over a relatively short
period of time and is a snapshot of the person’s abilities.”
Admin. Rec. at 252.
Second, the ALJ’s RFC limitations were generally consistent
with Meserve’s assessment. Indeed, the ALJ took note of
claimant’s performance during Meserve’s assessment in his own
analysis, stating that the RFC was “consistent with the
claimant’s actual performance on testing in February 2012 when
he lift[ed] in excess of 25 pounds and sat for a total of nearly
[half] of his testing sessions.” Admin. Rec. at 335. For these
reasons, claimant’s arguments concerning the ALJ’s treatment of
the Meserve assessment are unpersuasive.
D. Opinions of Dr. McLellan and Dr. Coffey
Zackowski next argues that the ALJ erred by giving little
weight to the opinion of his treating physicians, Dr. McLellan
and Dr. David Coffey. According to Zackowski, the ALJ’s
findings regarding the lack of support for those opinions
erroneously ignores the Meserve assessment.
18 “If the ALJ does not afford controlling weight to the
opinion of a treating source, ‘the ALJ must give good reasons
for the weight afforded that source,’ which means that ‘the
ALJ's order must contain specific reasons for the weight given
to the treating source's medical opinion, supported by evidence
in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and reasons for
that weight.’” Nelson v. Colvin, No. 15-CV-37-SM, 2016 WL
1255664, at *5 (D.N.H. Mar. 30, 2016) (quoting Eley v. Colvin,
No. 14-CV-165-JL, 2015 WL 1806788, at *2 (D.N.H. Apr. 21, 2015)
(further quotations omitted). As the court has determined, the
ALJ’s treatment of the Meserve assessment was supported by
substantial evidence. The reasons given by the ALJ in his
decision for discounting the opinions of Dr. McLellan and Dr.
Coffey are specific, and well-supported by the evidence in the
case record. See Admin. Rec. at 334-335 (citing Admin. Rec. at
597, 600, 713, 606). Accordingly, it cannot be said that the
ALJ erred by declining to give the opinions of Dr. McLellan and
Dr. Coffey controlling weight.
II. ALJ’s Evaluation of Claimant’s Testimony
Zackowski next argues that the ALJ’s evaluation of his
testimony regarding his symptoms is erroneous and unsupported by
19 substantial evidence. According to Zackowski, the ALJ’s
findings regarding inconsistencies between claimant’s testimony
and his treatment records do not constitute substantial evidence
to support the ALJ’s evaluation, because they are limited
portions of the lengthy record. Zackowski also takes issue with
the ALJ’s reliance on his function reports and activities of
daily living because they largely pre-date claimant’s first
hearing before the ALJ in 2014. He more generally argues that
the ALJ should not have relied upon his activities of daily
living because they have a limited correlation with his capacity
to maintain full time employment.
Neither argument is persuasive. First, the ALJ’s decision
makes evident that he comprehensively reviewed the entirety of
claimant’s extensive medical record. See Admin. Rec. at 329-
332. The ALJ’s finding concerning the inconsistency of
claimant’s statements with the medical record is well-supported
not only by the evidence cited by the ALJ in his decision, but
by substantial additional medical evidence in the record as
well. See Admin. Rec. at 333-334; see also Admin. Rec. at 627,
637, 650-51, 652-655, 666, 670. 2
2 The court also notes multiple instances in the medical record of claimant’s noncompliance with or lack of interest in treatment for the pain he purports to be suffering, “[i]n accord with the common sense notion that a person who does not follow a
20 Moreover, the ALJ’s reliance on Zackowski’s activities of
daily living in assessing his statements concerning the
intensity and persistence of his symptoms was not error. The
question was recently addressed by our court of appeals in
Coskery v. Berryhill, 892 F.3d 1, 7 (2018), where claimant
argued, in part, “that his ability to perform household chores,
care for a dog, shop for groceries, and engage in other daily
activities does not necessarily demonstrate that he is able to
perform ‘light work.’” The court disagreed, stating that Social
Security Ruling 16-3p “expressly requires that the ALJ consider
an applicant’s ‘[d]aily activities’ to ‘evaluate the intensity,
persistence, and limiting effects of an individual’s symptoms.’”
Coskery, 892 F.3d at 7 (quoting 82 Fed. Reg. at 494465).
Therefore, an ALJ can not “be said to have acted in
contravention of the requirements of SSR 16-3p in considering
the evidence of [claimant’s] daily activities.” Id. The court
further noted that it was not unreasonable for the ALJ to infer
“from what the record showed about Coskery’s ability to engage
in these types of daily activities, that Coskery could perform
light work,” and the ALJ had not relied solely on the evidence
course of treatment for pain may not be suffering from that pain as intensely as the person claims.” Coskery v. Berryhill, 892 F.3d 1, 6 (2018). See, e.g., Admin. Rec. at 302, 598-599, 601- 602, 603-604, 647, 656, 659.
21 of Coskery’s daily activities in finding that he had the
capacity to perform light work. Id.
So too, here. The record indicates that Zackowski serves
as a primary caregiver to his young children (admin. rec. at
255, 283, 621, 637, 683, 728), drives (id. at 184, 615, 768),
prepares meals (id. at 183, 768), performs household chores (id.
at 255, 271, 768), grocery shops (id. at 184, 271), walks at
least a mile daily (id. at 654), and uses a snowblower (id. at
271). It was not unreasonable for the ALJ to note Zackowski’s
ability to engage in those activities when considering
claimant’s statements regarding the intensity, persistence and
limiting effect of his symptoms. And, the ALJ did not solely
rely upon Zackowski’s daily activities in making his
determination; he also referred to claimant’s records, medical
opinions, and claimant’s own inconsistent statements and
testimony.
In sum, the ALJ did not err in evaluating claimant’s
III. Questioning of the Vocational Expert
Finally, Zackowski’s argues that the ALJ’s hypothetical
questioning of the vocational expert at the hearing failed to
incorporate all of the non-exertional limitations from the ALJ’s
22 RFC findings, specifically the 30-minute increment limitation.
Therefore, says Zackowski, the ALJ’s RFC findings are not
consistent with the hypothetical questioning of the vocational
expert, and with claimant’s ability to sustain employment on a
full-time basis.
At the hearing, the ALJ asked the vocational expert the
following hypothetical:
Q: And would you first please assume an ability to perform a range of light exertion work, maybe lifting occasionally up to 20 pounds, and frequently 10 pounds, with standing and walking for each – sitting standing, and walking each for up to four hours per workday in increments of 30 minutes. In terms of postural activities – let me see something. Would you please assume occasional stooping, crouching with no crawling; no climbing of ladders, or ropes, or scaffolds; and only occasional climbing of ramps and stairs; and with frequent balancing; only occasional pushing and pulling; and only occasional overhead work.
Given that hypothetical I can already eliminate the past work, would you assume an individual with the same vocational factors as the claimant and by that I mean the same age, education, and past work as the claimant and the hypothetical I just set forth above. Are there any jobs such an individual could perform in the national or regional economies?
Admin. Rec. at 66. As set forth above, the RFC assessed by the
ALJ is as follows:
the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)
23 and 416.967(b) except he is limited from standing, walking or sitting for more than 30 minutes at one time and for more than 4 hours total during an 8-hour workday. He can occasionally stoop, crouch, balance, kneel and climb stairs. He can occasionally push, pull, and work overhead. He cannot climb ladders/ropes or scaffolds.
Admin. Rec. at 333. As the Acting Commissioner points out, the
words may differ, but the substance is identical. Zackowki’s
argument to the contrary is not persuasive.
Conclusion
This court’s review of the ALJ’s decision is both limited
and deferential. The court is not empowered to consider
claimant’s application de novo, nor may it undertake an
independent assessment of whether he is disabled under the Act.
Rather, the court’s inquiry is “limited to determining whether
the ALJ deployed the proper legal standards and found facts upon
the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999). Provided the ALJ’s findings are properly
supported by substantial evidence - as they are in this case -
the court must sustain those findings even when there may also
be substantial evidence supporting the contrary position. Such
is the nature of judicial review of disability benefit
determinations. See, e.g., Tsarelka v. Secretary of Health &
Human Services, 842 F.2d 529, 535 (1st Cir. 1988) (“[W]e must
uphold the [Commissioner’s] conclusion, even if the record
24 arguably could justify a different conclusion, so long as it is
supported by substantial evidence.”); Rodriguez v. Secretary of
Health & Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (“We
must uphold the [Commissioner’s] findings in this case if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the Acting Commissioner and claimant,
the court necessarily concludes that there is substantial
evidence in the record to support the ALJ’s determination that
claimant was not “disabled,” as that term is used in the Act, at
any time prior to the date of her decision.
For the foregoing reasons, as well as those set forth in
the Acting Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 7) is
denied, and the Acting Commissioner’s motion to affirm her
decision (document no. 9) is granted. The Clerk of the Court
shall enter judgment in accordance with this order and close the
case.
25 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
September 11, 2018
cc: D. Lance Tillinghast, Esq. Terry L. Ollila, Esq.