UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David R. Costa, Claimant
v. Case No. 13-cv-241-SM Opinion No. 2014 DNH 173
Carolyn 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,
David Costa, moves to reverse or vacate the Commissioner’s
decision denying his applications for Social Security Disability
Insurance Benefits under Title II of the Social Security Act, 42
U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 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 Acting Commissioner’s motion is granted. Factual Background
I. Procedural History.
In 2010, claimant filed an applications for Disability
Insurance Benefits and Supplemental Security Income benefits,
alleging that he had been unable to work since July 12, 2009, due
to ventricular tachycardia (status post-ICD implant), bilateral
hearing loss, degenerative disk disease of the lumbar spine,
degenerative changes in the left hip and knee, carpal tunnel
syndrome, COPD, depression, anxiety, social phobia, and a
learning disability. That application was denied and claimant
requested a hearing before an Administrative Law Judge (“ALJ”).
In March of 2012, claimant, his attorney, his fiancee, and a
vocational expert appeared before an ALJ, who considered
claimant’s applications de novo. Three weeks later, the ALJ
issued his written decision, concluding that claimant was not
disabled, as that term is defined in the Act, at any time prior
to the date of his decision.
Claimant then sought review of the ALJ’s decision by the
Appeals Council. That request was denied. Accordingly, the
ALJ’s denial of claimant’s applications for benefits became the
final decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
2 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. 9). In response, the Acting
Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 13). 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. 14), 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 &
3 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 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
4 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 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
5 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
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. Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: July 12, 2009. Admin.
Rec. at 13. Next, he concluded that claimant suffers from the
following severe impairments: “a history of ventricular
tachycardia with implanted defibrillator, bilateral sensorineural
hearing loss, degenerative changes of the lumbar spine, left hip
and knee, carpal tunnel syndrome, chronic obstructive pulmonary
disease and a learning disability with social anxiety disorder
versus depressive disorder - NOS.” Id. Nevertheless, the ALJ
determined that those impairments, regardless of whether they
were considered alone or in combination, did not meet or
6 medically equal one of the impairments listed in Part 404,
Subpart P, Appendix 1 of the regulations. Admin. Rec. at 15-17.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
light work.1 Admin. Rec. at 17. He noted, however, that
claimant must “avoid concentrated exposure to noise.” Id. In
light of those restrictions, the ALJ concluded that claimant was
not capable of performing his prior work as a mechanic’s helper,
a construction helper, or a welding helper. Id. at 19.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform. Relying upon
the testimony of a vocational expert, the ALJ concluded that,
notwithstanding claimant’s exertional and non-exertional
limitations, he “is capable of making a successful adjustment to
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 other work that exists in significant numbers in the national
economy.” Id. at 20. Consequently, the ALJ concluded that
claimant was not “disabled,” as that term is defined in the Act,
through the date of his decision (March 21, 2012).
Discussion
Claimant challenges the ALJ’s decision on a number of
grounds, asserting that he erred by: (1) failing to consider
whether the combination of claimant’s impairments meets a listing
level of severity; (2) misstating, or taking out of context,
claimant’s activities of daily living (particularly his “reading”
of the daily newspaper, mowing the lawn, and doing laundry); (3)
misstating the medical opinion evidence of record; (4) failing to
give sufficient weight to the testimony given by claimant’s
fiancee; (5) failing to consider all of claimant’s impairments -
in particular his carpal tunnel syndrome; and (6) failing to
present the vocational expert with a hypothetical that included
all of claimant’s impairments.
I. Step Three - Listing Level of Impairment(s).
At step three of the sequential analysis, claimant bears the
burden of demonstrating that he suffers from an impairment or
combination of impairments that meets or equals a listing in the
pertinent regulations. See Torres v. Secretary of Health & Human
8 Services, 870 F.2d 742, 745 (1st Cir. 1989) (citing Dudley v.
Secretary of Health & Human Services, 816 F.2d 792, 793 (1st Cir.
1987)). While claimant identifies his impairments - focusing in
particular on his ventricular tachycardia, status post-ICD
implant, and COPD - he has not shown how they (together or in
combination with his other impairments) amount to a listing level
impairment. See Claimant’s memorandum (document no. 9-1) at 6.
The ALJ, on the other hand, specifically (and thoroughly)
addressed each of claimant’s impairments, Admin. Rec. at 13-15,
and concluded that they did not meet a listing level - either
standing alone or in combination, id. at 15-17. The court can
discern no error in the ALJ’s findings, which are supported by
substantial evidence.
II. Claimant’s Activities of Daily Living.
Claimant takes issue with the ALJ’s having stated that
claimant “acknowledged that he spent time reading the paper,
using a computer, fishing, watching movies and playing video
games.” Admin. Rec. at 16. Claimant asserts that the ALJ
overstated the time he spent playing video games and incorrectly
reported that claimant “read” the newspaper, when he actually
stated that he “looked at” the newspaper (noting that claimant
has some difficulty reading and writing). See Claimant’s
9 memorandum at 7-8. In his “Function Report” dated September 22,
2010, claimant reported that he began each day by having coffee,
looking at the paper, checking things out on line, and taking a
walk. Admin. Rec. at 220. He repeated those statements in
January of 2011. Id. at 241.
Even if the ALJ erred in construing the record evidence (he
did not), such an error would have been harmless.2 The
distinctions claimant attempts to draw are so subtle as to have
little weight. Even interpreting the record as claimant asks, it
still does not support his claim that the ALJ’s decision rests on
less than substantial evidence. Moreover, as the Commissioner
points out, the ALJ relied on claimant’s reported activities of
daily living simply as part of his broader credibility
determination, not as part of his assessment of claimant’s RFC or
as proof of claimant’s ability to engage in substantial gainful
activity. See Admin. Rec. at 18 (listing claimant’s activities
and concluding that “[t]hese tasks belie the claimant’s current
testimony.”). See generally St. Pierre v. Shalala, 1995 WL
515515 *3 (D.N.H. May 25, 1995) (“When evaluating the subjective
claims of pain it is proper and, indeed, required that the ALJ
consider daily activities such as driving, walking and household
2 Parenthetically, the court notes that it was not unreasonable for the ALJ to have inferred that “looking at” the newspaper involved reading.
10 chores. This allows the Secretary to juxtapose the claimant’s
subjective allegations of pain with the relative intensity of his
daily regimen.”) (citations omitted).
III. Medical Opinion Evidence.
Next, claimant asserts that the ALJ improperly credited the
opinions of non-examining physicians (Kelvin Samaratunga, M.D.,
Admin. Rec. at 348-55; Burton Nault, M.D., id. at 408; and
Michael Schneider, Psy.D., id. at 382-98) over those of examining
physicians (Sandra Vallery, Ph.D., id. at 286-94; Darrell Horton,
Ph.D., id. at 377-80; and Peter Sanfelippo, M.D., id. at 360-63).
In discussing the weight that will be ascribed to the opinions of
“treating sources,” the pertinent regulations provide:
Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion.
20 C.F.R. § 404.1527(c)(2). See also Social Security Ruling,
Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, SSR 96-
2p, 1996 WL 374188 (July 2, 1996). Importantly, however, there
11 is no per se rule requiring the ALJ to give controlling weight to
the opinion of an examining, or even a treating source; to be
entitled to such weight, a medical source’s opinions must be
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and [cannot be] inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2).
In this case, the medical opinions from the examining
sources are not dramatically different from those expressed by
the non-examining sources. While claimant focuses on a few of
the differences, they are not sufficient to undermine the ALJ’s
conclusions. For example, claimant points to Dr. Vallery’s
somewhat ambiguous (and far-from-conclusive) statement that
claimant “would probably have some difficulty with short and
simple instructions.” Admin. Rec. at 292. Claimant says that
statement, if fully credited, would undermine his ability to
perform light work. And, he adds, the ALJ failed to adequately
explain why he did not fully credit that statement.
Dr. Vallery’s complete assessment of claimant’s abilities in
the realm of understanding and remembering instructions reads as
follows:
12 This claimant was able to understand instructions. He did have problems though with memory, both on the Folstein Mini Mental Status Examination as well as in the interview where there are many dates and sequences of events that he could not recall with any specificity. He would probably have some difficulty with short and simple instructions which would be confounded by his hearing problem, and certainly would have difficulty with anything that was complex and lengthy.
Admin. Rec. at 292. Dr. Schneider, who reviewed claimant’s
medical records - including the report prepared by Dr. Vallery -
concluded that, notwithstanding his limitations, claimant “is
able to understand, remember, and carry out short and simple
verbal instructions. He is not able to understand, remember and
carry out more detailed ones.” Id. at 398. Viewing the record
evidence as a whole - including, for example, claimant’s
employment history and activities of daily living - the ALJ
sustainably concluded that claimant’s memory issues would not
preclude him from remembering (and carrying out) short and simple
instructions. And, he adequately explained the basis for his
decision to afford substantial weight to those medical opinions
he credited most heavily.
Claimant also challenges the ALJ’s decision to give less
than controlling weight to the opinion of Peter Sanfelippo, M.D.
Dr. Sanfelippo conducted a consultative examination of claimant
in March of 2011, and, based upon a physical examination of
13 claimant, a review of his medical records, and his self-reported
medical history, Dr. Sanfelippo concluded that:
Based on the evidence during the examination, the examinee is able to perform work activities which require sitting, limited standing and moving about, and very limited lifting and carrying. He is able to handle objects. He does have decreased hearing acuity. He is able to speak.
Admin. Rec. at 362. Claimant asserts that, if fully credited,
Dr. Sanfelippo’s opinion that he is capable of only “limited
standing and moving about” would render him unable to perform
“light” work. Again, however, while there may be substantial
evidence in the record to support claimant’s view that he is
disabled, there is also substantial evidence to support the ALJ’s
contrary view. See, e.g., Admin Rec. at 220-24, 241-42, 244,
291, 317, 349, 355, 362, and 378.
IV. Testimony from Claimant’s Fiancee.
Claimant asserts that the ALJ failed to even mention
testimony given at the hearing by claimant’s fiancee - testimony
that supported his claim to be disabled. See Claimant’s
memorandum at 16 (“The ALJ failed to mention anywhere in his
decision that the fiancee was present or had testified at the
hearing.”). That is not correct. In recounting claimant’s
testimony, the ALJ specifically noted that his “fiancee also
testified and corroborated the claimant’s testimony.” Admin.
14 Rec. at 18. Plainly, after thoroughly considering the evidence
of record, the ALJ concluded that claimant’s testimony, as well
as that of his fiancee, overstated claimant’s impairments to some
degree. That was an entirely permissible conclusion for the ALJ
to draw, it is supported by substantial evidence, and he was not
required to address the fiancee’s testimony in any greater
detail. The Court of Appeals for the Seventh Circuit has
addressed this very point:
Books’s brother Roland’s testimony did not constitute a separate “line of evidence.” Rather, it served strictly to reiterate, and thereby corroborate, Books’s own testimony concerning his activities and limitations. To the extent ALJ Bartelt found Books’s testimony concerning his disabling pain and physical limitations to be untenable when contrasted with his reported daily activities and the relevant medical evidence, he necessarily found Roland Books’s supporting testimony similarly not credible. ALJ Bartelt, therefore, did not err by declining to address Roland’s testimony specifically.
Books v. Chater, 91 F.3d 972, 980 (7th Cir. 1996). See also
Lindahl v. Barnhart, 2003 WL 21994761 *6, 2003 DNH 143 (D.N.H.
Aug. 21, 2003).
V. Consideration of Claimant’s Carpal Tunnel Syndrome.
Next, claimant asserts that the ALJ’s RFC determination “is
internally inconsistent with the ALJ’s severity findings at step
2. No explanation was offered for leaving out limitations
associated with carpal tunnel syndrome.” Claimant’s memorandum
15 at 18. Again, however, substantial evidence supports the ALJ’s
(implicit) conclusion that claimant’s carpal tunnel syndrome did
not substantially affect his RFC. For example, Dr. Samaratunga
opined that claimant had no manipulative limitations. Admin.
Rec. at 350. Similarly, after examining claimant, Dr. Sanfelippo
reported that claimant: “has normal grasp and squeeze with both
hands. He has full motion of all fingers, both hands, both
wrists, both elbows, and both shoulders.” Id. at 362.
VI. The ALJ’s Hypothetical.
Finally, claimant challenges the hypothetical question the
ALJ posed to the vocational expert. Specifically, he asserts
that if the ALJ had included all of the exertional and non-
exertional limitations identified by some of the consulting
physicians, he would have been found disabled. But, it is
quintessentially the role of the ALJ to review the record
evidence, ascribe to each piece of evidence appropriate weight,
and render his decision. Here, as discussed above, the ALJ
adequately (and supportably) explained his decision to credit
some of the record evidence and discount other evidence. As is
often the situation in disability cases, there is certainly
substantial evidence to support claimant’s position. But,
importantly, there is also substantial evidence to support the
ALJ’s adverse decision.
16 Conclusion
This court’s review of the ALJ’s decision is both limited
and deferential. It is not empowered to consider claimant’s
application de novo, nor may it undertake an independent
assessment of whether he is, in fact, disabled. 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 here - 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.”). Consequently, while there
is certainly substantial evidence in the record demonstrating
that claimant suffers from some cognitive deficits, hearing loss,
anxiety, and a history of ventricular tachycardia, the existence
of such evidence is not sufficient to undermine the ALJ’s
determination that claimant is not disabled, which is also
supported by substantial evidence.
17 Having carefully reviewed the administrative record
(including the testimony of the claimant, his fiancee, and the
vocational expert), as well as the arguments advanced by both the
Acting 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 at any time prior to
the date of his decision (March 21, 2012). The ALJ’s
determination of claimant’s RFC, his weighing of the various
medical opinions of record and claimant’s activities of daily
living, his credibility determinations, and his hypothetical to
the vocational expert are well-reasoned and supported by
substantial record evidence.
For the foregoing reasons, as well as those set forth in the
Acting Commissioner’s memorandum, claimant’s motion to reverse
the decision of the Commissioner (document no. 9) is denied, and
the Acting Commissioner’s motion to affirm her decision (document
no. 13) is granted. The Clerk of the Court shall enter judgment
in accordance with this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge August 19, 2014
cc: Janine Gawryl, Esq. Robert J. Rabuck, AUSA