Dubois v. Astrue CV-11-283-JL 6/20/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Raymond Dubois
v. Civil N o . 11-cv-263-JL Opinion N o . 2012 DNH 109 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM ORDER
This is an appeal from the denial of Raymond Dubois’s
application for Social Security benefits. See 42 U.S.C. §
405(g). An administrative law judge (“ALJ”) found that Dubois,
though suffering from severe impairments of tibial tendinitis and
bilateral pes planus, was not disabled because he retained the
residual functional capacity to perform light work, including his
past relevant work as a telemarketer. See 20 C.F.R. §§
404.1520(e)-(f), 416.920(e)-(f).
Dubois has moved for an order reversing that decision, see
L.R. 9.1(b)(1), arguing that the ALJ’s findings were not
supported by substantial evidence. The Commissioner of the
Social Security Administration (“SSA”) has cross-moved for an
order affirming that decision, see L.R. 9.1(d), arguing to the
contrary. This court has subject-matter jurisdiction under 42
U.S.C. § 405(g) (Social Security). After reviewing the
administrative record, the parties’ joint statement of material facts, and their respective memoranda, the court concludes that
the ALJ’s findings were supported by substantial evidence in the
record. The court accordingly denies Dubois’s motion and grants
the Commissioner’s motion.
I. Applicable legal standard
This court’s review under § 405(g) 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 3 1 , 35 (1st Cir. 1999). The ALJ is responsible
for determining issues of credibility, resolving conflicting
evidence, and drawing inferences from the evidence in the record.
See Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d 2 1 8 ,
222 (1st Cir. 1981). If the ALJ’s factual findings are supported
by substantial evidence in the record, i.e., “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion,” Richardson v . Perales, 402 U.S. 389, 401 (1971)
(quotations omitted), they are conclusive, even if the court does
not agree with the ALJ’s decision and other evidence supports a
contrary conclusion. See 42 U.S.C. § 405(g); Tsarelka v . Sec’y
of Health & Human Servs., 842 F.2d 529, 535 (1st Cir. 1988). The
ALJ’s findings are not conclusive, however, if they were “derived
2 by ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen, 172 F.3d at 3 5 .
II. Background
Pursuant to this court’s local rules, the parties filed a
Joint Statement of Material Facts (document n o . 1 4 ) , which is
part of the record reviewed by the court. See LR 9.1(d). This
court will briefly recount the key facts and otherwise
incorporates the parties’ joint statement by reference.
In August 2009, Dubois, who was 58 years old at the time,
filed applications for a period of disability, disability
insurance benefits and supplemental security income. He claimed
that, as of April 1 , 2009, he suffered from arthritis,
tendinitis, and diabetic neuropathy that limited his ability to
stand and caused him severe pain. Admin. R. at 167. Those
conditions, Dubois said, had forced him to reduce his work to a
part-time schedule and, because they continued to worsen, would
likely cause him to stop working entirely. Id.
The SSA initially denied Dubois’s applications on October
2 3 , 2009, after determining that his condition was not severe
enough to prevent him from working. Id. at 6 0 , 69-74; see also
id. at 184. Dubois appealed that decision to the ALJ, see
generally 20 C.F.R. § 405.301 et seq., who held a hearing on
3 Dubois’s application on January 4 , 2011. Prior to the hearing,
Dubois submitted a number of medical records pre- and postdating
the alleged onset of his disability, as well as notarized
statements from several of his acquaintances who attested to a
decline in his physical condition. At the hearing, Dubois
testified to his previous work history and the nature of his
medical complaints. A vocational expert engaged by the SSA also
appeared and testified at the hearing.
The record evidence showed that Dubois began to experience
back pain in late 2006 and was diagnosed with acute, mild lumbar
facet syndrome. See generally Admin. R. at 225-43. A little
over a year later, in November 2007, Dubois began complaining of
foot pain and was initially diagnosed with plantar fasciitis.
Id. at 339-40. That pain continued to increase, and in June
2008, Dubois was diagnosed with tibialis tendinitis and pes plano
valgus.1 Id. at 320-24. Though Dubois’s podiatrist warned him
of the danger of deformity and disability at that time, and
instructed him to modify his shoes and obtain arch supports, id.
at 323, Dubois still had not obtained supportive insoles by
September of that year. See id. at 308.
1 Pes plano valgus is more commonly known as flat feet. See Dorland’s Illustrated Medical Dictionary 1441 (31st ed. 2007).
4 Dubois continued to complain of foot pain in 2009. He
reported to his primary care provider that he always experienced
some pain in his feet, but that the pain increased if he was
standing. Id. at 284. On March 1 0 , 2009, Dubois’s podiatrist
opined that his tibialis tendinitis had deteriorated. Id. at
282. In late April 2009 (after Dubois’s alleged onset of
disability), however, Dubois reported that his foot pain was a “2
out of 10,” and his podiatrist opined that his tibialis
tendinitis had improved, and that his right tendinitis was
“improving with arch support.” Id. at 280.
Notwithstanding that supposed improvement, Dubois continued
to complain of foot and leg pain throughout 2009 and into 2010.
See, e.g., id. at 2 6 8 , 421-23, 427-29. He was referred to
physical therapy, id. at 4 1 4 , which, in April 2010, revealed that
Dubois had a stand tolerance of “~ 2 hrs. - 2 ½ hrs.” and that,
although he had gotten stronger, his functioning was still
limited. Id. at 437. In August 2010, Dubois’s podiatrist opined
that he “would benefit from [a] brace and modification of work
activity to less than 3.5 hours weightbearing in one work
period.” Id. at 395-96. The podiatrist therefore prescribed a
pair of Arizona braces for Dubois, id. at 3 8 1 , 443, which Dubois
maintained he was unable to obtain because of their cost. See
id. at 222.
5 At the hearing in January 2011, Dubois testified to the
subjective effects of his medical conditions, including the
limitations they imposed on him. Dubois testified that he had
serious concerns about whether he would be able to stand due to
his foot and leg problems. Id. at 37-38. According to Dubois,
he began noticing foot pain if standing “for like ten minutes or
so . . . but it progressively gets worse as I’m standing and if I
stand for like three or four hours, afterwards I am in extreme
pain.” Id. at 4 0 . Dubois speculated that he would not be able
to perform a job where he sat and stood alternately in one-hour
increments “because it’s too soon to be back to standing after
standing for a whole hour and have to come back to doing it.”
Id. Dubois testified that after a three- or four-hour shift at
work, he would be “really wiped” and would “[f]requently lay
down” after arriving home. Id. at 4 6 . Dubois further testified
that he often had to go to the bathroom in the middle of the
night and was suffering from a sleeping disorder, and that the
combination of these latter two problems caused him to doze off
if seated for a length of time. Id. at 3 8 .
Dubois also testified about the requirements of his then-
current part-time job as a convenience store cashier and his
previous job as a telemarketer. Dubois’s prior job as a
telemarketer was done primarily while seated, and required him to
6 get up only occasionally. Id. at 33-34. He was required to lift
40-60 pound boxes of mailings about once a month, and would also
occasionally lift about ten pounds. Id. at 34-35. Dubois
further testified that in his job as a cashier, he had become
incapable of stocking shelves, and therefore primarily worked at
the register. Id. at 3 0 . Because “company policy” required him
to stand while at the register, his limitations meant that only
very few shifts were available to him. Id. at 30-31.
The vocational expert characterized Dubois’s convenience
store job, as he was performing it at the time of the hearing, as
a “cashier II” job, which constituted light, unskilled work. Id.
at 4 9 . She characterized the telemarketer job as Dubois
performed it as primarily sedentary, but occasionally rising to
the medium level. Id. As regards the cashier II job, she
testified that there are many such jobs in the general economy
that allow a cashier to sit or stand at will. Id. at 5 1 . She
further testified that a person who could perform “light exertion
work with maximum standing and walking only an hour per day”
could work at a telemarketing job as generally performed. Id.
The ALJ later issued a written decision finding that Dubois
met the insured status requirements of the Social Security Act,
had not engaged in substantial gainful activity since his alleged
onset of disability, and suffered from severe impairments of
7 tibial tendinitis and bilateral pes planus.2 Id. at 9-10. The
ALJ also found, however, that these impairments did not meet or
equal an impairment listed in the Social Security regulations,
and that Dubois retained the residual functional capacity3 to
perform light work, “except he can sit or stand alternatively at
will with maximum standing and or walking for 3 hours per workday
in increments of no more than one to one and one half hours,” and
also had other restrictions preventing him from performing the
full range of light work. Id. at 1 0 . In making this finding,
the ALJ noted that Dubois’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms” were not
entirely credible. Id. at 1 1 . Based upon these findings, the
ALJ concluded that Dubois was capable of performing his past
relevant work as a telemarketer, which generally required only
sedentary exertion. Id. at 1 3 . As a result, the ALJ concluded
2 The ALJ found that other of Dubois’s impairments--diabetes, sleep apnea, back condition, and vertigo--were non-severe, as there was “no evidence that they cause more than mild limitations in the claimant’s ability to perform basic work activities.” Admin. R. at 1 0 ; see 20 C.F.R. §§ 404.1520(c), 416.920(c). 3 “Residual Functional Capacity” is defined as “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Social Security Ruling (“SSR”) 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *1 (S.S.A. 1996)
8 that Dubois was not disabled as defined by the Social Security
Act.
The ALJ’s decision was selected for review by the Decision
Review Board (“DRB”). See 20 C.F.R. § 405.401 et seq. The DRB,
however, failed to complete its review during 90-day period
allotted by 20 C.F.R. § 405.420(a)(2), making the ALJ’s decision
the final decision of the SSA. Admin. R. at 1 . Dubois filed
this appeal on February 1 8 , 2011.
III. Analysis
A five-step process is used to evaluate an application for
social security benefits. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The claimant bears the burden, through the first
four steps, of proving that he is disabled, i.e., that (1) he is
not engaged in substantial gainful activity; (2) he has a severe
impairment; (3) the impairment meets or equals a specific
impairment listed in the Social Security regulations; and (4) the
impairment prevents or prevented him from performing past
relevant work. Id.; see Freeman v . Barnhart, 274 F.3d 606, 608
(1st Cir. 2001). At the fifth step, the SSA bears the burden of
showing that the claimant has the residual functional capacity to
perform other work that may exist in the national economy.
Freeman, 274 F.3d at 608; see 20 C.F.R. §§ 404.1520(a)(4)(v),
9 416.920(a)(4)(v). “[A]ll five steps are not applied to every
applicant, as the determination may be concluded at any step
along the process.” Freeman, 274 F.3d at 608.
In the present case, the ALJ denied Dubois’s application at
step four, concluding that Dubois’s medically determinable
impairments did not prevent him from performing his past relevant
work as a telemarketer, as Dubois was still capable of performing
light work with some modifications. Dubois challenges that
conclusion, arguing that there is insufficient evidence in the
record to support the ALJ’s findings that (a) he could perform
light work, (b) his description of the disabling effects of his
conditions were not credible, and (c) he could perform his past
relevant work as a telemarketer. After careful review of the
record and the parties’ submissions, the court affirms the ALJ’s
decision.
A. Dubois’s ability to perform light work
Dubois first argues that the ALJ’s finding that he was
capable of performing light work is not based on substantial
evidence, and, in fact, contradicts the record evidence. He
cites the opinion of Barry Frank, his treating podiatrist, who
examined Dubois on August 2 4 , 2010. See Admin. R. at 395-96.
Following that examination, D r . Frank wrote out a prescription
slip stating that Dubois should “limit work related activity to 3
10 ½ hours daily as needed for foot pathology chronic.” See id. at
381, 383. Dubois argues that the ALJ should have taken this
statement “at face value” and concluded that D r . Frank meant that
Dubois was limited to working no more than three and one-half
hours per workday. Were Dubois in fact so limited, that would
necessarily render him disabled, because “[u]nder the applicable
guidelines, an individual who is unable to work a 40-hour
workweek is considered disabled.” Mitchell v . Astrue, 2012 DNH
054, 15 (citing SSR 96-8p); see n.3 supra.
Rather than assuming that D r . Frank meant to impose such a
limitation, though, the ALJ viewed the prescription slip in
conjunction with D r . Frank’s notes from the same day, which
stated that Dubois “would benefit from . . . modification of work
period.” Id. at 395-96. In light of this statement, the ALJ
inferred that the prescription slip “was intended for the
claimant’s employer, who required the claimant to stand for the
duration of his shift.” Id. at 1 2 . He further noted that “the
inclusion of the words ‘as needed for chronic foot pathology’ [in
the slip] tends to indicate that this restriction would only
apply to work requiring the claimant to be on his feet.” Id.
“[C]onsidering the intended audience of this note, and the more
specific wording in the medical notes,” the ALJ concluded that
11 “Dr. Frank did not intend to limit the claimant’s sitting
capacity.” Id.
Dubois suggests that the ALJ should have read the
prescription slip in isolation, essentially ignoring the notes
that D r . Frank took on the same day. This argument is not
persuasive. An ALJ must “fully account[] for the context of
materials.” Reddick v . Chater, 157 F.3d 715, 722-23 (9th Cir.
1998); see also, e.g., Shaw v . Astrue, 2011 DNH 213, 15-16. Nor
is the court persuaded that the ALJ should have contacted D r .
Frank to clarify his opinion, as Dubois argues was necessary
under the Social Security regulations providing that the SSA will
recontact a medical source “when the report contains a conflict
or ambiguity that must be resolved.” 20 C.F.R. §§
404.1512(e)(1), 416.912(e)(1). Here, any ambiguity in D r .
Frank’s opinion that Dubois should limit his “work related
activity” to three and one-half hours per day is eliminated when
that opinion is viewed in its proper context; as the ALJ
concluded, that context makes clear that the “work related
activity” D r . Frank was concerned with was “weightbearing”--i.e.,
standing or walking--work activity. See Admin. R. at 395-96. In
other words, read in context, D r . Frank’s overall opinion was not
12 sufficiently ambiguous to require any additional record
development by the ALJ.4
Dubois also argues that the ALJ’s finding that he could
perform less than the full range of light work is necessarily
inconsistent with the finding that he could stand and/or walk a
maximum of three hours per day, as “a good deal of walking or
standing” is “the primary difference between sedentary and most
light jobs.” See SSR 83-10, Titles II and XVI: Determining
4 Even assuming that D r . Frank’s opinion was ambiguous, this court would be reluctant to ascribe any error to the ALJ. As the Commissioner notes, Dubois’s own attorney apparently interpreted Dr. Frank’s notes in the same way as the ALJ, asking the vocational expert at the hearing:
Is it vocationally significant for the jobs of convenience cashier and convenience cashier II that the claimant have more than 3.5 hours of standing per day. In other words if like D r . Frank said, all he could stand was 3.5 hours during the day, could he perform either the convenience cashier checker or the convenience cashier II?
Admin. R. at 53 (emphasis added). “When a claimant is represented, the ALJ should ordinarily be entitled to rely on claimant’s counsel to structure and present the claimant’s case in a way that claimant’s claims are adequately explored.” Faria v . Comm’r of Soc. Sec., 187 F.3d 621 (1st Cir. 1998) (unpublished) (citation and internal quotation marks omitted); see also Sears v . Bowen, 840 F.2d 3 9 4 , 402 (7th Cir. 1988)(“[A]n ALJ is entitled to presume that claimant represented by counsel in the administrative hearings has made his best case.”). Where Dubois’s own counsel did not contend at the hearing that any further record development was necessary, and apparently endorsed the same reasonable reading of D r . Frank’s notes that the ALJ later adopted, the court does not believe the ALJ should have independently seized upon and pursued another possible reading.
13 Capability to Do Other Work -- The Medical-Vocational Rules of
Appendix 2 , 1983 WL 31251, *5 (S.S.A. 1983). The court is not
persuaded by this argument, which is virtually identical to an
argument advanced and rejected in Putnam v . Astrue, 2011 DNH 123.
There, the claimant argued that the ALJ’s finding that he could
perform light work was inconsistent with the finding that he
could stand and walk up to one hour per day. Id. at 1 0 . Judge
McAuliffe declined to accept this argument, noting that although
the ability to stand and walk only one hour per day made it clear
that the claimant could not perform the full range of light work,
a “claimant’s inability to perform the full range of light work
does not compel the conclusion that he is only capable of less
physically demanding (i.e., sedentary) work.” Id. at 10-11. The
court agrees with that conclusion. Indeed, the same Social
Security Ruling cited by Dubois recognizes that not all light
work requires “a good deal of walking or standing,” and that a
job may fall into the category of light work “when it involves
sitting most of the time.” SSR 83-10, 1983 WL 31251 at * 5 . In
this case, the record evidence amply supports the ALJ’s
conclusion that Dubois was capable of working at a light
14 exertional level with some restrictions, including that he could
stand and/or walk a maximum of three hours per day.5
B. The ALJ’s credibility determination
Dubois next argues that the ALJ failed to sufficiently
support the finding that Dubois’s subjective descriptions of his
limitations were not entirely credible. In making that finding,
the ALJ took into account a number of factors: the “minimal
clinical support for the claimant’s allegations of total
disability”; “noncompliance with treatment on the claimant’s
part,” which the ALJ considered an indication “that the
claimant’s conditions are not as severe as his testimony would
otherwise suggest”; and “the claimant’s activities of daily
living,” which the ALJ also believed to be “inconsistent with a
finding of total disability.” Id. at 11-12. Each of those
5 This conclusion aside, Dubois’s argument that his walking and standing restrictions rendered him unable to perform light work suffers from an even more fundamental problem. As the ALJ noted in his written decision, Dubois’s past relevant work as a telemarketer required only sedentary exertion. See Admin. R. at 1 3 . Thus, even if Dubois was able to perform only sedentary work due to his walking and standing restrictions, as he argues, that could not have prevented him from performing his past relevant work. Similarly, although the court does not agree with Dubois that the ALJ failed to account for a rehabilitation record showing that his “stand tolerance” was two to two and one-half hours, even if the ALJ had concluded that Dubois could stand no more than that in an eight-hour workday, that would not have prevented Dubois from performing his past relevant work as a telemarketer, either.
15 findings is supported by substantial evidence, and is therefore
entitled to deference.6 See Frustaglia v . Sec’y of HHS, 829 F.2d
192, 195 (1st Cir. 1987).
With respect to the ALJ’s finding that there was minimal
clinical support for Dubois’s allegations of total disability,
Dubois points out that the ALJ’s written report incorrectly
states that he maintained “full range of motion” in his lower
extremities “[t]hrough the entire period.” Admin. R. at 1 1 . In
fact, Dubois’s medical records indicate that on two occasions in
June and July 2010, he exhibited a mildly decreased range of
motion--once in both ankles, see id. at 4 0 4 , and later only in
his right ankle, see id. at 399. This oversight, however, does
not undermine the ALJ’s ultimate conclusion. Apart from these
two instances, Dubois identifies no other medical records
indicating a reduction in his range of motion, and in fact, by
his next two doctor’s visits in October and November 2010, Dubois
was again exhibiting “normal [range of motion] and strength” in
6 Dubois does not appear to contend that, in evaluating his credibility, the ALJ either failed to apply or misapplied the factors for evaluating a claimant’s subjective complaints of pain set forth in Avery v . Secretary of HHS, 797 F.2d 1 9 , 28-29 (1st Cir. 1986), and later modified in expanded in SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 WL 374186, *3 (S.S.A. 1996). The court therefore does not address those factors in detail, though they guided the ALJ’s assessment of Dubois’s credibility.
16 his lower extremities, with “no joint enlargement or tenderness.”
Id. at 3 8 7 , 390. Nor does Dubois identify any medical records
contradicting the ALJ’s observations that he maintained full
strength and full sensation in his lower extremities, exhibited
no neurological deficits, and was prescribed only NSAIDs for his
condition. Although Dubois does identify medical records
demonstrating “abnormal findings” concerning his back, leg,
ankle, and foot pain, the ALJ reasonably could have concluded
that those findings, while exhibiting an impairment, did not
substantiate Dubois’s claims of total disability.
The ALJ’s observation that Dubois had not complied with his
providers’ recommendations for treatment also finds support in
the record. Though Dubois’s treating podiatrist informed him on
June 3 , 2008, that he “[n]eed[ed] to modify [his] shoes and
obtain OTC arch supports,” and warned him of “potential deformity
and disability” if he did not, id. at 323, Dubois had not
obtained supportive insoles by the time of a follow-up
appointment in September of that year, see id. at 3 0 8 , nor had he
done so by March 2009, see id. at 282. Dubois ignores this
evidence, instead arguing that the ALJ impermissibly relied on
his failure to obtain Arizona braces that had been prescribed for
him in August 2010 by the time of the hearing in January 2011.
Id. at 1 2 ; see id. at 3 8 1 , 396. Pursuant to SSR 96-7p, Dubois
17 says, the ALJ should not have drawn any inference about his
credibility “from [his] failure to seek or pursue regular medical
treatment without first considering” his explanation that he was
not able to afford Arizona braces. SSR 96-7p, 1996 WL 374186 at
*7-8; see Admin. R. at 222. The ALJ was not bound to accept that
explanation, however, and in light of Dubois’s earlier failure to
follow his podiatrist’s recommendation that he obtain supportive
insoles, the ALJ could reasonably have rejected that explanation
in favor of the alternative explanation that Dubois’s conditions
were not quite so severe as he claimed. C f . Berger v . Astrue,
516 F.3d 539, 546 (7th Cir. 2008) (sustaining ALJ’s credibility
determination, which was based in part on claimant’s failure to
pursue treatment, even though “much of [claimant’s] failure to
pursue treatment [could] be explained by his lack of insurance
coverage or money to foot the bills”).
Finally, the ALJ’s finding that Dubois’s daily activities
are inconsistent with total disability is supported by record
evidence. As the ALJ observed, Dubois continued to work part-
time at a job that required him to remain standing at all times,
which is “strong evidence” that Dubois could remain standing for
at least three hours per day in a normal workday. Admin. R. at
12. And, as the ALJ also observed, in applying for benefits,
Dubois reported that he was able to prepare meals for himself,
18 perform housework, use public transportation, go shopping, and
engage in leisure activities with friends. Id. Among other
things, Dubois reported that he played guitar and surfed the
internet on a daily basis, and that he had experienced no changes
in those activities as a result of his disability. Id. at 178.
Based upon this evidence, the existence of which Dubois does not
contest, the ALJ could have concluded that Dubois’s claims of
total disability were not credible. See Berger, 516 F.3d at 546
(evidence that claimant continued to work on a part-time basis
and engaged in non-work household activities “cut[] against his
claim that he was totally disabled” and “indicate[d] that [he]
could perform sedentary work and was not rendered entirely
immobile”).
The two District of Massachusetts cases upon which Dubois
relies, Dedis v . Chater, 956 F. Supp. 45 (D. Mass. 1997), and
Rohrberg v . Apfel, 26 F. Supp. 2d 303 (D. Mass. 1998), are not
to the contrary. In Dedis, the court actually sustained the
ALJ’s credibility determination where the claimant testified that
he was “unable to engage in heavy household chores or any of his
former recreational activities.” 956 F. Supp. at 5 4 . Dubois, on
the other hand, was not only capable of performing household
chores, but by his own admission, engaged in recreational
activities on a daily basis with no limitations due to his
19 alleged disability. This also distinguishes him from the
claimant in Rohrberg, who testified that “her ability to run
errands daily . . . was very unpredictable from one day to the
next,” that she could “perform scheduled activities for two
hours” before requiring one and one-half hours of rest, that on
some days “she was fatigued to the point of disorientation, was
too dizzy to drive, would rest most of the day, and was unable
even to pay bills.” 26 F. Supp. 2d at 310.
Because the ALJ’s factual findings regarding Dubois’s
credibility are supported by substantial evidence in the record,
the court will not disturb them.
C. Dubois’s ability to perform his past relevant work as a telemarketer
Dubois’s final argument is that the ALJ erred in determining
that he retained the residual functional capacity to perform his
past relevant work as a telemarketer. Dubois asserts that the
ALJ, in making this finding, “relied on the [vocational expert’s]
response to a hypothetical question which fails to include the
limitations supported by the record.”7 In particular, he says,
7 The ALJ’s hypothetical question asked the vocational expert whether Dubois’s past relevant work as a telemarketer and as a convenience store cashier could be performed by someone who could
perform a range of light work in terms of lifting which would allow for sitting or standing alternatively at will with maximum standing and or walking for three
20 the ALJ’s hypothetical question did not “include D r . Frank’s
finding that M r . Dubois is limited to working a maximum of 3.5
hours a day” or Dubois’s alleged need to take a break every 30 to
45 minutes so that he would not fall asleep due to his sleep
disorder. Neither of these supposed deficiencies warrants
reversal of the ALJ’s decision.
First, as discussed in Part III.A, supra, the ALJ’s reading
of D r . Frank’s notes as expressing the opinion that Dubois was
limited to three and one-half hours of weightbearing work per
day, not to three and one-half hours of any work, was supported
by the record. Second, the ALJ ultimately concluded that
Dubois’s sleep disorder did not cause more than a mild
limitation, noting that “the last evidence on record related to
sleep apnea suggests that the claimant’s condition had improved
to the point where he had no significant apneas.” Admin. R. at
12. Dubois testified to the contrary at the administrative
hours per work day? And in increments of no more than an hour or hour and a half at a time with a short change of position. . . . [T]here would be only occasional climbing of stairs with no climbing of ladders. Occasional balancing, occasional stooping and crouching and kneeling with no crawling. Pushing and pulling would be limited to occasional as would operation of foot controls and that’s bilaterally. . . . [T]here wold be no exposure to unprotected heights as well as dangerous moving machinery.
Admin. R. at 49-50.
21 hearing, claiming that he would fall asleep if seated for any
length of time, id. at 3 8 , but, as already noted, see Part III.B,
supra, the ALJ was justified in not crediting Dubois’s subjective
descriptions of the limitations posed by his disorders.
Accordingly, the ALJ did not err in relying upon the vocational
expert’s answer to a hypothetical question that did not include
those “limitations.”
IV. Conclusion
Pursuant to sentence four of 42 U.S.C. § 405(g), Dubois’s
motion to reverse and remand the Commissioner’s decision8 is
DENIED. The Commissioner’s motion to affirm the decision9 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 ___ Unj/ted States District Judge Dated: June 2 0 , 2012
cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.
8 Document n o . 8 . 9 Document n o . 1 1 .