UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Diane Renee Gilmore, Claimant
v. Case No. 18-cv-256-SM Opinion No. 2019 DNH 015 Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Diane Renee
Gilmore, moves to reverse or vacate the Acting Commissioner’s
decision denying her application for 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.
Factual Background
I. Procedural History.
Gilmore filed an application for supplemental security
income on September 22, 2015, 1 alleging that she had been unable
1 Claimant filed two previous applications alleging disability that were denied on November 15, 2012, and September 3, 2014, respectively. to work since January 7, 2007, due to a combination of mental
and physical impairments. 2 Administrative Record (“Admin. Rec.”)
at 57, 121. That application was denied (Admin. Rec. at 57,
71), and claimant requested a hearing before an Administrative
Law Judge (“ALJ”) (Admin. Rec. at 78).
On September 28, 2017, Gilmore appeared with counsel before
an ALJ, along with a vocational expert, who considered
claimant’s application de novo. Admin. Rec. at 23-71. At the
hearing, claimant amended her alleged onset date to August 20,
2015. Admin. Rec. at 576. On October 17, 2017, the ALJ issued
his written decision, concluding that Gilmore was not disabled,
as that term is defined in the Act, at any time prior to the
date of the decision. Id. at 10-22.
Gilmore sought review of the ALJ’s decision by the Appeals
Council. Admin. Rec. at 119. By notice dated January 29, 2018,
the Appeals Council denied Gilmore’s request for review. Admin.
2 The record is not entirely clear on the alleged onset date of disability. In the Joint Statement of Facts, the parties state the alleged onset date as January 7, 2007. However, the Initial Disability Determination and the Field Office Disability Report note the alleged onset date as July 12, 2011. Admin. Rec. at 58, 139.
In any event, the record is clear that the claimant subsequently amended her alleged onset date to August 20, 2015. Admin. Rec. at 576.
2 Rec. at 1-4. Accordingly, the ALJ’s denial of Gilmore’s
application for benefits became the final decision of the Acting
Commissioner, subject to judicial review. Id. at 1.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by
substantial evidence.
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),
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 SSI 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. § 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
4 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 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
5 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. § 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 Gilmore 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. §
416.920. See generally Barnhart v. Thomas, 540 U.S. 20, 24
(2003). Accordingly, the ALJ first determined that Gilmore had
not been engaged in substantial gainful employment at any time
relevant to the decision. Admin. Rec. at 18. Next, he
concluded that Gilmore suffers from the following severe
impairment: “degenerative disc disease, obesity,
migraines/headaches, depression, and anxiety.” Id. at 18-19.
The ALJ also considered Gilmore’s obstructive sleep apnea, and
determined that it did not cause more than “minimal limitations
on the claimant’s work-related functioning,” and therefore was
not severe. Id. at 19. The ALJ then determined that Gilmore’s
6 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
19-21. Gilmore does not challenge any of those findings.
Next, the ALJ concluded that Gilmore retained the residual
functional capacity (“RFC”) to perform the exertional demands of
light work, as defined in 20 CFR 416.967(b), “except the
claimant can stand and walk for up to four hours and sit for up
to six hours in an eight-hour work date.” Admin. Rec. at 21.
The ALJ stated that claimant can “occasionally climb ladders and
stairs,” “occasionally balance, stoop, kneel, crouch, and
crawl.” Id. The ALJ further stated that the claimant is
limited to “simple, unskilled work,” “can maintain attention and
concentration for two-hour increments throughout an eight-hour
workday and forty-hour workweek,” and “should have a semi-
isolated work setting, for example no tandem tasks or team work,
and only brief and [superficial] social interaction with the
general public.” Id. In light of those restrictions, the ALJ
concluded that claimant was not capable of returning to her
prior job. Id. at 27.
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,
7 App. 2, and the testimony of the vocational expert at the
hearing, the ALJ concluded that “there are jobs that exist in
significant numbers in the national economy that the claimant
can perform.” Admin. Rec. at 27. 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) failing to fully develop the administrative
record; and (ii) placing great weight on the opinion of non-
examining state agency consultant, Dr. Jonathan Jaffe.
I. Development of the Record.
Claimant first argues that the ALJ failed to properly
develop the record as required by 20 CFR 416.912(2). In support
of that argument, claimant states that she retained counsel for
the matter on August 22, 2017, and, the next day, counsel
contacted the Office of Disability Adjudication and Review,
requesting a continuance of the hearing scheduled for September
28, 2017, because the medical records “appear to be . . .
missing providers and dates of service.” Admin. Rec. at 111.
Claimant’s request for a continuance was denied, and claimant
contends that, as a result of that denial, she was ultimately
8 unable to obtain portions of the medical record until after the
hearing was held.
Social Security proceedings are not adversarial in nature,
and therefore the ALJ has “a duty to develop an adequate record
from which a reasonable conclusion can be drawn.” Heggarty v.
Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) (internal citations
and quotations omitted). That duty “is heightened where the
claimant is not represented by counsel, but applies in all
cases.” Silva v. US Soc. Sec. Admin., Acting Comm'r, No. 17-CV-
368-PB, 2018 WL 4043146, at *5 (D.N.H. Aug. 3, 2018) (quoting
Brunel v. Barnhardt, No. 00-cv-402, 2002 WL 24311, *8 (D.N.H.
Jan. 7, 2002)) (additional citations omitted). “[F]or an ALJ’s
failure to develop the record to constitute reversible error,
the claimant must demonstrate that he or she has suffered some
prejudice as a result.” Id. (quoting Russell v. Colvin, No.
13-cv-398, 2014 WL 4851327, *4 (D.N.H. Sept. 29, 2014)) (further
citations omitted). “Prejudice is demonstrated by showing that
the additional evidence might have led to a different decision.”
Silva, 2018 WL 4043146, at *5 (internal quotation omitted).
Gilmore’s argument is unsupported. First, as the Acting
Commissioner points out, at the hearing before the ALJ,
Gilmore’s counsel did not object to the record, nor did he
present or even refer to different treatment records claimant
9 intended to submit for consideration by the ALJ. Admin. Rec. at
575-576. Instead, claimant’s counsel introduced updated medical
records, and explained to the ALJ that, following claimant’s
request for a continuance, the Office of Disability Adjudication
and Review “indicated that [the ALJ would] be amenable to
keeping the record open for an additional time period after the
hearing.” Admin. Rec. at 578. The ALJ accepted the additional
records presented at the hearing into evidence. Id. See also
Admin. Rec. at 16. And, it does not seem that claimant’s
counsel made any effort to supplement the record following the
hearing and before the ALJ issued his decision.
Second, and more importantly, claimant fails to establish
that any additional records she might have submitted would have
changed the outcome of the ALJ’s decision in her favor. See
Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 140
(1st Cir.1987) (“We have held that remand is indicated only if,
were the proposed new evidence to be considered, the Secretary's
decision ‘might reasonably have been different.’”) (citation and
internal quotations omitted). Critically, while Gilmore
contends she was unable to submit “portions of the medical
record,” she fails to identify what portion of the medical
treatment records she was unable to submit. Nor does Gilmore
make any effort to explain why those unidentified missing
10 medical records might have altered the ALJ’s decision. For all
those reasons, claimant has not sufficiently established that
ALJ failed to adequately develop the record to her detriment, or
that remand is warranted.
Claimant’s argument references her appeal to the Appeals
Council. Claimant did not submit any medical treatment records
to the Appeals Council following the ALJ’s decision. Instead,
claimant submitted a Physical Residual Functional Capacity
Questionnaire form, completed by Dr. Timothy Lacy, claimant’s
physician at Seacoast Pain Institute since 2016, on October 9,
2017. The Appeals Council determined that “this evidence does
not show a reasonable probability that it would change the
outcome of the decision.” Admin. Rec. at 2.
To the extent that claimant is making the argument that the
Appeals Council erred by denying review, generally, the Appeals
Council’s denial of review “is not reviewable on appeal except
in the exceptional situation when the denial ‘rests on an
explicit mistake of law or other egregious error.’” Williams v.
Colvin, No. 15–CV–416–JD, c, at *2 (D.N.H. Mar. 10, 2016)
(quoting Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001)). “In
that exceptional circumstance, the reason for denying review
must be both articulated and ‘severely mistaken’.” Id. (quoting
Mills, 244 F.3d at 5). Gilmore falls far short of meeting that
11 standard. She fails to articulate precisely why Dr. Lacy’s
medical opinion would change the outcome of the ALJ’s decision.
Moreover, Dr. Lacy has been claimant’s physician since at least
December, 2016. Gilmore provides no explanation as to why this
medical opinion could not have been provided to the ALJ prior to
– or least at – the hearing. Thus, claimant has not
sufficiently established that the Appeals Council was
egregiously mistaken in denying review.
II. Substantial Evidence Supports the ALJ’s RFC Determination.
Second, Gilmore argues that the ALJ’s RFC determination is
not supported by substantial evidence because the ALJ erred in
relying on the opinion of Dr. Jaffe. Gilmore contends that the
ALJ’s reliance was erroneous because, at the time of Dr. Jaffe’s
review of Gilmore’s medical records, several pertinent medical
records were missing.
As this court has previously noted:
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, see id. at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly
12 inconsistent” with, the reviewer's assessment. See Torres v. Comm. 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 closely reviewed claimant’s medical records,
including those post-dating Dr. Jaffe’s review, and determined
that those medical records were consistent with Dr. Jaffe’s
opinion. Admin. Rec. at 24. The ALJ capably explained that
determination with detailed citations to the record. Id. See
also Admin. Rec. 19-26. Claimant fails to point to any evidence
in the record inconsistent with the ALJ’s determination beyond
the opinion of Dr. Lacy, which, as previously discussed, was not
before the ALJ. Based on the court’s review, the record
supports the ALJ’s conclusion, and the ALJ did not err in
relying on Dr. Jaffe’s opinion.
13 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
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.”).
14 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 his 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. 11) 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
January 18, 2019
cc: Christopher G. Roundy, Esq. John J. Engel, Esq. Michael L. Henry, Esq.