UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Charlene Sekula, Claimant
v. Case No. 13-cv-393-SM Opinion No. 2014 DNH 230
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Charlene Sekula, moves to reverse or vacate the Acting
Commissioner’s decision denying her applications for Disability
Insurance Benefits under Title II of the Social Security Act, and
Supplemental Security Income Benefits under Title XVI, 42 U.S.C.
§§ 423 and 1381-1383c (collectively, the “Act”). The Acting
Commissioner objects and moves for an order affirming her
decision.
For the reasons discussed below, claimant’s motion is
denied, and the Commissioner’s motion is granted. Factual Background
I. Procedural History.
In 2010, claimant filed applications for Disability
Insurance Benefits and Supplemental Security Income, alleging
that she had been unable to work since March 11, 2009. Those
applications were denied and claimant requested a hearing before
an Administrative Law Judge (“ALJ”).
In December of 2011, claimant, her representative, and a
vocational expert appeared before an ALJ, who considered
claimant’s application de novo. Four weeks later, the ALJ issued
his written decision, concluding that claimant was not
“disabled,” as that term is defined in the Act. Claimant then
sought review of the ALJ’s decision by the Appeals Council. Her
request was denied. Accordingly, the ALJ’s denial of claimant’s
applications for benefits became the final decision of the Acting
Commissioner, subject to judicial review. Subsequently, claimant
filed a timely action in this court, asserting that the ALJ’s
decision is not supported by substantial evidence. Claimant then
filed a “Motion to Reverse the Decision of the Commissioner”
(document no. 14). In response, the Commissioner filed a “Motion
for Order Affirming the Decision of the Commissioner” (document
no. 18). Those motions are now ripe.
2 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. 20), 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),
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
3 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 Social Security disability benefits is
disabled under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or 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 burden,
the claimant must prove, by a preponderance of the evidence, that
her impairment prevents her from performing her 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 her previous
work, the burden shifts to the Commissioner to show that there
are other jobs in the national economy that she can perform, in
light of her age, education, and prior work experience. See
4 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 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.
42 U.S.C. § 423(d)(2)(A) (emphasis supplied). See also 42 U.S.C.
§ 1382c(a)(3)(B).
5 With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ’s Findings
In concluding that claimant 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, he first determined that
claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: March 11, 2009. Admin.
Rec. at 22. Next, he concluded that claimant suffers from the
following severe impairments: “traumatic brain injury,
degenerative disc disease of the cervical spine, affective
disorder, anxiety disorder, borderline personality disorder/mood
disorder, and narcotic medication use/dependence.” Id.
Nevertheless, the ALJ determined that those 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
22-24. Claimant does not challenge any of those findings.
6 Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
a range of light work.1 He noted, however, that she:
can never climb ladders, but can perform the remaining postural activities on an occasional basis. The claimant should avoid concentrated exposure to respiratory irritants and hazards. She has the ability to understand, remember, and carry out basic unskilled instructions and tasks with minimal changes. She can follow a schedule and make decisions, and complete simple tasks on a consistent basis. The claimant would perform best in a low social context, preferably in a non-public setting. She is able to meet the basic mental requirements of substantial gainful activity.
Admin. Rec. at 24. The ALJ also noted that claimant has no past
relevant work. Id. at 29.
Finally, at step five of the analysis, the ALJ considered
whether there were any jobs in the national economy that claimant
might perform. Relying upon the testimony of a vocational
1 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184 at *2 (July 2, 1996) (citation omitted).
7 expert, the ALJ concluded that, notwithstanding claimant’s
exertional and non-exertional limitations, she “is capable of
making a successful adjustment to other work that exists in
significant numbers in the national economy,” id. at 30,
including several representative occupations identified in his
order. Consequently, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act, through the date
of his decision (January 10, 2012).
Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that he erred by: (1) incorrectly determining her
residual functional capacity; and (2) improperly assessing her
credibility and erroneously discounting her subjective complaints
of disabling pain.
I. Claimant’s Residual Functional Capacity.
Claimant first challenges the ALJ’s determination that she
was capable of performing a range of light work, asserting that
the ALJ failed to properly account for her “difficulty
concentrating, a debilitating fear of leaving her home, and
difficulty dealing with stressors,” all of which are products of
her “on-going struggles with anxiety and depression.” Claimant’s
Memorandum (document no. 15) at 7. Consequently, she claims the
8 “ALJ’s RFC determination is not supported by substantial
evidence. Id. at 10. The court disagrees.
There is, to be sure, evidence in the record supportive of
claimant’s assertion that she is disabled. As she notes, she has
ongoing struggles with anxiety and depression, suffers from low
back pain, and has some difficulty concentrating. But, there is
also substantial evidence in the record to support the ALJ’s
contrary conclusion that she is capable of engaging in
substantial gainful activity. For example, although claimant
asserts that the RFC assessment does not “properly account for
the time off-task one would expect [her] to experience,”
Claimant’s memorandum at 8, the ALJ noted that an examining
psychologist, Kathleen Prouty, Ph.D., concluded that claimant’s
sustained concentration and persistence (as well as her
understanding and memory) were within normal limits. Admin. Rec.
at 23, 627. Dr. Prouty summarized her conclusions as follows,
specifically opining that claimant retains the mental acuity and
ability to focus necessary to sustain gainful employment.
Summary. The results of the various intellectual, memory, and cognitive [testing] provided varying results, with numerous strengths and weaknesses. There were minimal consistencies throughout, raising concerns over any specific and localized head injury. Additionally, the claimant has a history of polysubstance abuse, which may have contributed to some of the deficits noted. However, despite various weaknesses, this claimant possesses functional
9 cognitive, intellectual, and memory capabilities and could pursue employment when so motivated.
Admin. Rec. at 617. See also Id. at 737 (psychiatric evaluation
performed by Jennifer Boswell, M.D., reaching similar
conclusions). Dr. Prouty also opined that claimant’s impairments
will not “impose any limitations for 12 months.” Id. at 627.
Similarly, state agency reviewing psychiatrist, Raymond
Novak, M.D., and state agency reviewing psychologist, Michael
Schneider, Psy.D., both opined that claimant’s “ability to
maintain attention and concentration for extended periods” is
“not significantly limited.” See Id. at 103, 686. In fact, Dr.
Novak concluded that:
Claimant is able to understand, remember, and carry out basic unskilled instructions and tasks, with minimal changes. Claimant can follow a schedule, make decisions commensurate with SRTs, and complete simple tasks on a consistent basis. Claimant would perform best in a low social context work setting, preferably in a non-public setting. Claimant is able to meet the basic mental requirements for SGA.
Id. at 104. Finally, as the ALJ noted, while claimant complained
of memory issues in the immediate aftermath of her head injuries
in 2009, the record reveals that those issues had resolved by the
following summer or fall. See, e.g., Id. at 559 (“She reports
that she is doing phenomenally better. . . . When she returned
[from a trip to the east coast] she was markedly improved. She
10 is no longer having the sensory changes and the numbness in the
legs. Problems with memory, concentration, focus are all
resolved. She is doing very well. . . She is no longer having
any dizziness or vertigo or gait issues.”); 712 (“memory problems
appear to have cleared recently”); 737 (“Cognition: intact - no
evidence of short-term memory impairment”). See also Id. at 617
(claimant scored a 28/30 on a “Mini Mental Status Examination”
administered by Dr. Prouty and an overall GAF score of 70,
indicating generally mild symptoms).
As for claimant’s allegations of disabling physical
limitations, the ALJ’s contrary conclusion is, again, supported
by substantial evidence. For example, the ALJ gave considerable
weight to the opinions of neurological consultant Jeri B.
Hassman, M.D., who opined that claimant could perform the
physical requirements of work associated with light work, subject
to some modest limitations (e.g., only occasional stooping,
kneeling crouching, and crawling; no ladders or scaffolds).
Admin. Rec. at 623-24. See also Id. at 117 (opinions of non-
examining medical consultant Jerry L. Dodson, M.D.). And, as the
ALJ noted, on physical examination claimant repeatedly
demonstrated good balance, normal grip strength, and full (or
nearly full) strength in her extremities. See, e.g., Id. at 559
(“She arises from sitting to standing without difficulty. She
11 ambulates with a normal base of support, stride length, and foot
clearance. No use of assistive device. No loss of balance.
Balance testing with feet together and eyes closed reveals no
loss of balance, no swaying even with significant challenge. . . .
STRENGTH: Upper and lower extremity strength are 5/5
bilaterally.”); 621 (“She had full range of motion of both upper
extremities. She performed a range of motion of both upper
extremities a little slowly, but no obvious pain or guarding.
She was able to make a fist bilaterally. She had normal grip
strength bilaterally.”).
II. Claimant’s Credibility.
Next, claimant asserts that the ALJ “failed to properly
assess [claimant’s] subjective complaints of pain and did not
include a proper explanation of his credibility finding.”
Claimant’s memorandum at 11. Again, however, the court is
constrained to disagree.
The ALJ more than adequately supported his conclusion that
claimant’s subjective complaints of disabling pain and mental
impairments were inconsistent with the medical evidence of
record. Admin. Rec. at 26-27 (noting claimant’s “symptom
magnification,” the inconsistency between her GAF score and her
testimony, her refusal of psychiatric medications, and her lack
12 of motivation for treatment in January of 2011). The ALJ
identified several physical examinations that revealed that
claimant had full strength in her extremities, intact sensation,
and the ability to get on and off the examining table and arise
from a seated position without difficulty or assistance. Admin.
Rec. at 26. See also Id. at 621. Additionally, despite claims
of dizziness/vertigo, claimant repeatedly displayed good balance
and actually reported that she was able to ride her motorcycle
“really well.” See, e.g., Id. at 269, 508, 559. The ALJ also
supportably relied upon claimant’s reported activities of daily
living to conclude that her complaints of disabling pain and
cognitive deficits were somewhat overstated. See, e.g., Id. at
616, 630, and 801.2
The record also contains reference to an occasion when
claimant seems to have misled her primary care physician about
whether she continued to seek treatment/therapy at COPE Medical
Behavioral Services. Id. at 712 (“I explained that [claimant]
hasn’t been seen at COPE since Sept. 2009, [claimant’s physician]
said [claimant] has been telling her she is being seen here
consistently.”). There are also references to claimant’s
“history of non-compliance with outpatient treatment,” id. at
2 The ALJ also adequately explained his decision to discount the testimony of Andrea DiDonato, who also testified at the hearing. Admin. Rec. at 27.
13 736, and potential “drug seeking behaviors” on claimant’s part,
id. at 104, 119, 474, and 617 - facts that also undermine
claimant’s credibility.3
Also somewhat telling is the observation made by Rexford
Burnette, Ph.D., who completed a psychological evaluation of
claimant. Dr. Burnette opined that, “Claimant does not appear to
be motivated at this time to participate in [vocational
rehabilitation], and seems more intent on seeking disability
benefits.” Admin. Rec. at 631. Claimant’s credibility is also
undermined by observations made by Dr. Boswell, who noted:
Ms. Sekula’s affect changed after she learned I would not be seeing her again. She appeared to become more relaxed and then, despite her initial endorsement of multiple symptoms, she began giving me a much different version of the nature of her current functioning. She said that she was actually functioning quite well considering her circumstances. She said she had been enjoying gardening and decorating her home. . . . She spoke highly of her landlady and said she had been doing some work for her.
Psychiatric Evaluation (dated July 14, 2011), Admin. Rec. at 736.
3 Claimant reports that she no longer uses heroine, methamphetamine, or cocaine, but has acknowledged continued “self-medication” with daily use of marijuana (despite being counseled as early as 2009 to discontinue that behavior). See, e.g., Admin. Rec. at 104, 388, 489, 500, 508, 561, and 619.
14 In light of the foregoing, the court cannot conclude that
the ALJ’s credibility determination, or his decision to discount
claimant’s subjective complaints of disabling symptoms, lack
substantial support in the record.
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 she 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
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
15 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 Commissioner and claimant, the
court 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 his decision (January 10, 2012). Both the ALJ’s
credibility determination and his conclusion that claimant
retains the ability to engage in substantial gainful activity are
well-reasoned and well-supported by substantial documentary
evidence.
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. 14) is
denied, and the Acting Commissioner’s motion to affirm her
decision (document no. 18) is granted. The Clerk of the Court
shall enter judgment in accordance with this order and close the
case.
16 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
October 30, 2014
cc: Christopher J. Seufert, Esq. Kelie C. Schneider, Esq. T. David Plourde, Esq.