Daniel Jarvis, Jr. v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration

2018 DNH 014

• Court: District Court, D. New Hampshire
• Decided: January 17, 2018
• Docket: 16-cv-494-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Daniel Jarvis, Jr.

v. Civil No. 16-cv-494-JL Opinion No. 2018 DNH 014 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Daniel Jarvis, Jr., has appealed the Social Security

Administration’s (“SSA”) denial of his application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

several severe impairments, Jarvis retains the residual

functional capacity (“RFC”) to perform jobs that exist in

significant numbers in the national economy, and thus is not

disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The

Appeals Council later denied Jarvis’s request for review, see

id. §§ 404.967, 416.1467, with the result that the ALJ’s

decision became the final decision on his application, see id.

§§ 404.981, 416.1481. Jarvis then appealed the decision to this

court, which has jurisdiction under 42 U.S.C. § 405(g) (Social

Security).

Jarvis has moved to reverse the ALJ’s decision. See

LR 9.1(b). The Acting Commissioner of the SSA has cross-moved for an order affirming the decision. See LR 9.1(e). After

careful consideration, the court denies Jarvis’s motion and

grants the Acting Commissioner’s motion.

Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Jarvis’s request for disability

and disability insurance benefits. See 20 C.F.R. §§ 404.1520,

416.920. After determining that Jarvis had not engaged in

substantial gainful activity after the alleged onset of his

disability on April 4, 2013, the ALJ analyzed the severity of

his impairments. At this second step, the ALJ concluded that

Jarvis had the following severe impairments: “acquired nerve

palsy of left brachial plexus, history of left shoulder injury

status post surgical repair, left shoulder osteoarthritis, and

status post left carpal tunnel release.”2

At the third step, the ALJ found that Jarvis’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (doc. no. 12) is incorporated by reference. See LR 9.1(d). 2 Admin. R. at 15.

2 regulations.3 See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926. After reviewing the medical

evidence of record, Jarvis’s own statements, the opinions of the

State agency medical consultant, Dr. Rosenthal, and the

“conclusory opinions” of Jarvis’s treating physicians, Drs.

Fleit and Buckley,4 the ALJ concluded that Jarvis, though unable

to perform any past relevant work, retained the RFC to perform

“less than a full range of light work, as defined in 20 C.F.R.

§ 404.1567(b)” due to a number of limitations.5 Finding that,

even limited in this manner, Jarvis was able to perform jobs

that exist in significant numbers in the national economy, see

20 C.F.R. §§ 404.1566 and 416.966, the ALJ concluded her

analysis and found that Jarvis was not disabled within the

meaning of the Social Security Act.6

Analysis

Jarvis contends that the ALJ erred by: (1) crafting

Jarvis’s RFC based on the conclusion that Jarvis was right-

handed, (2) discounting the opinions of Jarvis’s treating

physicians and his treatment records; (3) affording “great

3 Id. at 17. 4 Admin. R. at 21-22. 5 Admin. R. at 17. 6 Admin. R. at 23-24.

3 probative weight” to the opinion of the State agency medical

consultant despite the fact that he did not review the entire

record; and (4) relying on “insufficient and faulty vocational

evidence” at step five of the analysis.7 The court addresses

each of these arguments in turn and finds no reversible error.

A. Jarvis’s dominant hand

The ALJ, in crafting Jarvis’s RFC, concluded that “[h]e

would have no effective use of the non-dominant left upper

extremity.”8 In drawing this conclusion, the ALJ observed that

“[t]he record generally indicates that [Jarvis’s] dominant hand

is on the right, despite occasional references to left-side

dominance in the upper extremities,” and extensively cited where

the record so indicates.9 As the ALJ acknowledged during the

hearing, whether Jarvis was left- or right-handed prior to the

7 Claimant’s Mem. (doc. no. 8) at 12. Jarvis also, in a conclusory manner and without pointing to any specific record evidence that the ALJ failed to consider, contends that the ALJ did not “consider all of the relevant . . . evidence, including all impairments whether severe or non-severe.” Id. at 18-19. Because Jarvis fails to develop this argument beyond these general assertions, the court deems it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 8 Admin. R. at 17. 9 Id. at 18. The ALJ cited 11 separate records indicating that Jarvis was right-handed.

4 onset of his disability “may, in fact, make a fairly big

difference in this particular case.”10

Jarvis contends that the ALJ erred in concluding that his

injured left arm and shoulder were “non-dominant” in light of

other evidence to the contrary. He relies on three pieces of

evidence in support of this argument: (1) a single medical

record indicating that Jarvis is left-handed11; (2) his

Disability Report indicating the same12; and (3) his own

testimony to the effect that he was left-handed before he became

disabled, that he injured his left arm because he was left-

handed, that the medical records post-dating his disability

suggest otherwise because, following that injury, he told his

treating providers that he used his right hand because he could

no longer, at that point, use his left.13 Jarvis contends that

the ALJ erred when she “unilaterally chose not to afford any

weight” to this evidence.14

This court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

10 Id. at 39. 11Claimant’s Mot. (doc. no. 8) at 6 (citing Admin. R. at 65, 213-14). 12 Id. (citing Admin. R. at 213-14). 13 Id. at 6-8 (citing Admin. R. at 37-38, 46-47, 69-71). 14 Id. at 6.

5 and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,” id., that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quotations omitted). To the extent that the evidence in this

case supports multiple conclusions -- and it very reasonably may

-- the court will still uphold the ALJ’s findings “if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.”

Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,

769 (1st Cir. 1991).

Though Jarvis’s explanations for the discrepancy between

the evidence in his medical records and his testimony are not

unreasonable, the evidence in this record is adequate to support

the ALJ’s conclusion. Jarvis’s medical records almost

exclusively indicate right-handedness -- indeed, of those that

indicated dominance, all but one of Jarvis’s medical records

indicated that he was right-handed.15 The ALJ took the one

15See Admin. R. at 18 (citing at least ten records indicating right-handedness).

6 record to the contrary16 and Jarvis’s disability report17 into

account, as Jarvis’s counsel brought both of these documents to

the ALJ’s attention during the hearing.18 The court therefore

upholds the ALJ’s factual findings as to Jarvis’s dominant hand.

B. Medical records and opinion evidence

Jarvis next argues that the ALJ erred in crafting his RFC

because she “largely ignored and/or improperly discounted” the

records of Jarvis’s treating physicians and afforded greater

weight to the opinion of a state agency consultant who did not

review the entire record.19 The court likewise finds no error

here.

First, Jarvis offers a four-page list of medical records

that, he contends, were “largely ignored and/or improperly

discounted.”20 However, it appears from the ALJ’s decision that

she did consider the majority of the records Jarvis cites.21

16 Id. at 643. 17 Id. at 213. 18See id. at 46. During the hearing, the ALJ further noted that the same provider also indicated, in other records, that Jarvis was right-handed. Id. at 65-66. 19 Claimant’s Mot. (doc. no. 8) at 8, 12. 20 See id. at 8-12. 21Compare Admin. R. at 18-21 with Claimant’s Mot. (doc. no. 8) at 8-12.

7 Merely by way of example, Jarvis contends that the ALJ either

ignored or discounted the records of his medical treatment by

Deanne Chapman PA on April 9, 201322 or his treatment by Dr.

Peter Buckley in June 2013.23 The ALJ specifically discussed

these records, among many others, in no small detail in her RFC

analysis.24 Even had the ALJ not specifically cited and explored

these records, Jarvis offers no argument or explanation about

how they would or should have altered the ALJ’s RFC

determination,25 rendering any perceived error harmless. See

Perez Torres v. Sec’y of Health & Human Servs., 890 F.2d 1251,

1255 (1st Cir. 1989).

Second, Jarvis argues that the ALJ improperly gave “great

probative weight” to the opinion of the state agency medical

consultant, Louis Rosenthal, M.D., because that opinion was

“remote in time to the Decision and without the benefit of the

full record.”26 “[I]t ‘can indeed be reversible error for an

22 Claimant’s Mot. (doc. no. 8) at 8. 23 Id. at 9. 24 Admin. R. at 18-19. 25See Claimant’s Mem. (doc. no. 8) at 12 (arguing only, and without citation, that “[t]he Decision does not provide any rationale which is supported by the record as a whole -- at most, it is arguably supported by conjecture by the ALJ -- as to why the plaintiff’s treatment providers are ignored and/or not given proper weight . . . .”). 26 Claimant’s Mem. (doc. no. 8) at 12.

8 administrative law judge to rely on an RFC opinion of a non-

examining consultant when the consultant has not examined the

full medical record.’” Brown v. Colvin, 2015 DNH 141, 6-7

(quoting Ferland v. Astrue, 2011 DNH 169, 11 (McAuliffe, J.)).

Of course, “the fact that an opinion was rendered without the

benefit of the entire medical record does not, in and of itself,

preclude an ALJ from giving significant weight to that opinion.”

Coppola v. Astrue, 2014 DNH 33, 23–24. An ALJ may yet rely on

such an opinion “where the medical evidence postdating the

reviewer’s assessment does not establish any greater

limitations, 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.” Ferland, 2011

DNH 169 at 11 (internal citations omitted).

Jarvis contends that he received new diagnoses and that his

“condition worsened” in the period following Dr. Rosenthal’s

review of his records.27 He argues, without citation to any

legal authority or evidence supporting a lessened functional

capacity, that relying on the state agency consultant under

these circumstances is “unreasonable, unfair and legally

erroneous.”28 Absent any evidence, or even any argument, that

27 Claimant’s Mem. (doc. no. 8) at 12-13. 28 Id. at 13.

9 these new diagnoses or his change in condition established

greater limitations than those assessed by Dr. Rosenthal, the

court cannot agree.

Nor did the ALJ err in discounting the opinions of Jarvis’s

treating physicians as to his RFC.29 Dr. Peter Buckley provided

only a summary opinion that Jarvis was “[f]it for work - with

restrictions,” including avoiding overhead activity and using

his injured left hand and arm.30 Dr. Adam Fleit opined, in

similarly summary fashion, that Jarvis was “[n]ot fit for work .

. . of any sort at this time,” in light of a limited set of

restrictions.31

The ALJ did not err in discounting these opinions.

Opinions on the ultimate issue -- whether or not a claimant is

able to work -- are entitled to no deference at all. Morales-

Alejandro v. Med. Card Sys., Inc., 486 F.3d 693, 700 n.7 (1st

Cir. 2007). As to the remainder of Drs. Buckley’s and Fleit’s

opinions -- that Jarvis could not use his left arm -- the ALJ

effectively adopted that conclusion, determining that Jarvis

“would have no effective use of” that arm.32

29 See id. at 13-14. 30 Admin. R. at 696. 31 Id. at 928. 32 Admin. R. at 17.

10 C. Vocational evidence

At step five of the analysis, the ALJ concluded that Jarvis

was not disabled because he retained the RFC to perform jobs

that existed in significant numbers in the national economy.

The ALJ based this conclusion on testimony from the vocational

expert. None of Jarvis’s challenges to that conclusion mandate

reversal.

First, Jarvis contends that the ALJ erred in relying on the

vocational expert’s testimony because “[t]here exist obvious

inconsistencies” between that testimony and the Dictionary of

Occupational Titles (“DOT”).33 “When there is an apparent

unresolved conflict between [vocational expert] or [vocational

evidence] and the DOT, the adjudicator must elicit a reasonable

explanation for the conflict before relying on the [vocational

expert] or [vocational evidence] to support a determination or

decision about whether the claimant is disabled.” Policy

Interpretation Ruling: Titles II & Xvi: Use of Vocational Expert

& Vocational Specialist Evidence, & Other Reliable Occupational

Info. in Disability Decisions, 2000 WL 1898704, *2 (S.S.A. Dec.

4, 2000) (“SSR 00-4P”). Here, the vocational expert explicitly

stated that her testimony was consistent with the DOT.34 Jarvis

33 Claimant’s Mem. (doc. no. 8) at 15. 34 Admin. R. at 63.

11 has not identified any inconsistencies, obvious or otherwise,

that the ALJ should have resolved before relying on that

testimony.35

Instead, Jarvis contends that the ALJ erred by failing “to

establish the existence of sustained full-time jobs,” as opposed

to part-time jobs, “that were available,” or to establish “the

time period that said identified jobs were available.”36 He does

not argue -- and the record does not reflect -- that the jobs

identified by the vocational expert were, in fact, part-time

jobs, or were unavailable during the time period invoked by

Jarvis, and that this contradicted the DOT. Instead, the record

is silent. Under those circumstances, the failure of Jarvis’s

counsel to raise the issue or object at the hearing precludes

him from raising on appeal. See Aho v. Comm'r of Soc. Sec.

Admin., No. CIV.A. 10-40052-FDS, 2011 WL 3511518, at *14

(D. Mass. Aug. 10, 2011) (collecting cases). The court

therefore cannot conclude, based on this undeveloped argument,

that the ALJ erred in her treatment of the vocational expert’s

testimony.

35See Claimant’s Mem. (doc. no. 8) at 15 (stating only generally that “[t]here exist obvious inconsistencies” and tautologically that unspecified “testimony/evidence is not consistent with the [DOT], this cannot possibly be found to be consistent with the DOT . . . .”). 36 Id. at 16.

12 Finally, Jarvis contends that the ALJ erred in posing

hypotheticals based on the RFC determined earlier in her

analysis, when -- as discussed supra -- Jarvis contends that

this RFC was not based on substantial evidence and did not

incorporate all of Jarvis’s limitations.37 Because the ALJ did

not err in her RFC determination, see supra Parts III.A-B, she

likewise did not err in crafting hypothetical questions to the

vocational expert consistent with that RFC.

Conclusion

For the reasons discussed herein, Jarvis’s motion to

reverse and remand the Acting Commissioner’s decision38 is DENIED

and the Acting Commissioner’s motion to affirm39 is GRANTED. The

Clerk of Court is directed to enter judgment in accordance with

this order and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: January 17, 2018

cc: Christine Woodman Casa, Esq. Robert J. Rabuck, AUSA

37 Claimant’s Mem. (doc. no. 8) at 16-17. 38 Document no. 8. 39 Document no. 11.