UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Harry Herman Packer
v. Case No. 17-cv-260-PB Opinion No. 2018 DNH 113 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Harry Herman Packer challenges the denial of his claim for
social security disability insurance (SSDI) benefits and
supplemental security income (SSI) under Title II and Title XVI
of the Social Security Act. 42 U.S.C. § 423; 42 U.S.C. § 1381a.
He argues that the administrative law judge (ALJ) erred by
determining that his residual functional capacity (RFC) was
greater than the evidence showed and by finding that he could
still perform some work at step five. The Acting Commissioner
moves for an order affirming the decision. For the following
reasons, I affirm.
I. BACKGROUND
A. Facts
In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 17.
Because that joint statement is part of the court’s record, I
only briefly discuss the facts here. I discuss further facts
relevant to the disposition of this matter as necessary below.
Packer was a 41 year-old man at the time of his amended
alleged onset date. Administrative Record (AR) at 23, 127. He
had worked as “a vinyl cutter . . . van driver . . . auto parts
counter [delivery man] . . . and manager [of an] auto parts
[store],” prior to his application for benefits. AR at 34.
Packer is morbidly obese and has several attendant physical
impairments including type II diabetes, diabetic neuropathy,
orthostatic hypertension, high cholesterol, and osteomyelitis,
which led to the amputation of one of his toes. AR 23, 30. He
claims that his neuropathy affects his coordination and fine
motor skills in his hands. AR 29. He has also been a three-
pack-a-day smoker for a decade and suffers restrictive lung
disease and sleep apnea as a result. AR 23-24. Additionally,
Packer suffers from several mental impairments, including
depression, an anxiety disorder, and a personality disorder. AR
31. He claims that his personality disorder prevents him from
getting along with others, which led to his termination from
2 several jobs. AR 385.
Packer’s first physical problem was chest pain, which he
began experiencing in 2008. AR 27. After suffering this
initial chest pain, he stopped playing sports, but continued to
work as a manager at an automotive parts store until 2012. AR
27-28, 385, 390. He has not worked regularly since 2012,
spending most days in his room, watching television and playing
video games up to 15 hours a day. AR 391. He is able to
perform basic household chores such as cooking, cleaning, and
shopping, but does not do these chores because his mother and
girlfriend do them for him. AR 26. His apathy towards
completing even basic tasks extends to his use of the bathroom;
rather than going to the bathroom, he keeps a bucket near his
bed. AR 26.
B. Procedural History
Packer filed claims for both SSDI and SSI on January 28,
2014. His amended alleged onset date was June 1, 2013. 1 AR 115.
The Social Security Administration denied his claims both for
1 Packer initially alleged in his claim for SSDI that his disability onset date was June 1, 2013, while in his claim for SSI, he alleged that he had been disabled on October 9, 2012. AR 212, 214. At his hearing before the ALJ, Parker amended his disability onset date for all claims to June 1, 2013. AR 115. 3 SSDI and SSI on September 11, 2014. AR 155, 158. On September
15, 2014, he requested a hearing before an Administrative Law
Judge (ALJ). AR 161.
The ALJ conducted the hearing on December 29, 2015. AR 43.
The ALJ denied Packer’s claims for SSDI and SSI in a written
decision on March 16, 2016. AR 36. In the decision, the ALJ
applied the five-step analysis required by 20 C.F.R. § 404.1520
(for SSDI claims) and 20 C.F.R. § 416.920 (for SSI claims). At
step one, the ALJ determined that Packer had not engaged in
substantial gainful activity since his amended alleged onset
date of June 1, 2013. AR 20, 23. At step two, the ALJ
determined that Packer had the following severe impairments:
“diabetes mellitus type II with diabetic neuropathy, obesity,
personality disorder, and anxiety disorder.” AR 23. At step
three, the ALJ determined that Packer did not have any of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1, which
would render him disabled per se. AR 25. At step four, the ALJ
determined that Packer had a RFC to do “sedentary work as
defined in 20 CFR [§] 404.1567(a) and [§] 416.967(a),” and that
he also:
“[can] lift and carry 10 pounds frequently and 20 pounds occasionally[;] 4 cannot climb ladders[,] ropes[,] and scaffolds[;]
can occasionally climb ramps and stairs, balance, stoop, crouch, and crawl[; and]
may only have brief and superficial interaction with the general public.” AR 27.
The ALJ determined that, in light of this RFC, Packer could not
return to his past relevant work. AR 34. At step five, after
considering the opinion of a vocational expert, the ALJ
determined that Packer could work in a number of other jobs that
existed in the national economy, including, “hand package
inspector,” “price marker,” and “electric assembler.” AR 35.
The ALJ found that Packer was not disabled and denied his claims
for both SSDI and SSI. AR 36.
Packer petitioned the Appeals Council to review the ALJ’s
decision, but the Appeals Council denied his request for review.
AR 1. Packer filed a complaint for judicial review under 42
U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) on June 26, 2017.
Doc. 1.
II. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the administrative record 5 and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner. That review is limited,
however, “to determining whether the ALJ used the proper legal
standards and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st
Cir. 2000). I defer to the ALJ’s findings of fact, as long as
those findings are supported by substantial evidence. Id.
Substantial evidence exists “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) (per curiam)
(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
If the ALJ’s factual findings are supported by substantial
evidence, they are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. If,
however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or
judg[ed] matters entrusted to experts,” her findings are not
conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam). The ALJ determines issues of credibility and
draws inferences from evidence in the record. Irlanda Ortiz,
6 955 F.2d at 769. The ALJ, and not the court, must resolve
conflicts in the evidence. Id.
III. ANALYSIS
Packer moves to reverse the decision of the ALJ because the
ALJ determined that his residual functional capacity (RFC) was
greater than the evidence showed and incorrectly found that he
could still perform some work at step five. Doc. 9 at 4, 11,
13.
A. Residual Functional Capacity
Packer argues that the ALJ’s RFC finding was not supported
by substantial evidence because it failed to take into account
both Packer’s personality disorder (when determining his mental
RFC) and his limited use of his hands (when determining his
physical RFC). Doc. 9 at 4, 11.
1. Mental RFC: Personality Disorder
Packer argues that the doctors who evaluated him all formed
the uncontroverted expert opinion that he has a personality
disorder that renders him unable to get along with fellow
employees, and that the ALJ erred by omitting this limitation
from his RFC. Doc. 9 at 8-9.
7 An ALJ is a lay person when it comes to medical evidence,
and therefore she “cannot ignore medical evidence or substitute
[her] own views for uncontroverted medical opinion.” Nguyen,
172 F.3d at 35 (citing Rose v. Shalala, 34 F.3d 13, 18 (1st Cir.
1994)). Where medical experts state that a claimant has a
particular limitation, an ALJ must accept that expert opinion
unless there is another expert opinion that contradicts it. Id.
Several doctors evaluated Packer’s mental health over the
course of his initial application for SSDI and SSI benefits. In
February 2014, Dr. Stephanie Griffin examined Packer to
determine whether he was disabled under the New Hampshire
Department of Health and Human Services guidelines. AR 329.
She noted that he has been fired from multiple jobs because he
argued with management, but was polite and cooperative when she
met with him. AR 330-331. Dr. Griffin’s only diagnosis for
Packer was “major depressive disorder.” AR 333. Dr. Griffin
also opined that Packer “does not appear capable of adhering to
a work schedule or maintaining appropriate interactions with
supervisors/co-workers at this time . . . [but] does appear
generally capable of making adequate work-related decisions.”
AR 333. She did not explain how Packer’s depression led to his
8 inability to get along with others.
In August 2014, Dr. Thomas Burns examined Packer in order
to complete a Mental Health Evaluation Report for the New
Hampshire Social Security Disability Determination Service. AR
384. Dr. Burns noted that Packer was of average intelligence,
“capable of taking care of his personal needs,” “able to
communicate and interact with people around him adequately for
most purposes,” “able to concentrate and focus his energies
effectively enough to complete any tasks he chooses to
undertake,” but had a “long history of creating conflict between
himself [and] coworkers,” and was “quietly provocative [and]
negative.” AR 382, 384-385. Ultimately, Dr. Burns diagnosed
Packer with “Personality Disorder with Antisocial and
Narcissistic Features.” AR 385.
In September 2014, Dr. Edward Martin reviewed Packer’s
medical records in order to complete a Mental Residual
Functional Capacity Assessment. AR 134-136. He noted that
Packer’s only mental impairments are moderate limits to his
“ability to work in coordination with or in proximity to others
without being distracted by them” and his “ability to interact
appropriately with the general public.” AR 135. Dr. Martin
9 noted that Packer claimed that he had poor memory and
concentration as well, but that these claims were not credible.
AR 135. Dr. Martin also noted that Packer “is able to accept
simple instructions and to respond appropriately to non-
confrontational supervisory criticism and to changes in the work
situation.” AR 136.
In November 2015, Dr. Wojcik examined Packer, and completed
a report and a “Mental Residual Functional Capacity
Questionnaire.” AR 518, 523. The questionnaire was a check-box
form, in which Dr. Wojcik stated Packer had “major depressive
disorder,” “panic disorder,” and “melancholic features,” and
checked off numerous boxes indicating that Packer had various
symptoms of these diagnoses. AR 518-519. Dr. Wojcik also
described Packer as “socially withdrawn” and of a “low IQ,” but
provided little to no explanation for these diagnoses. AR 521.
Dr. Wojcik also completed a report based on a two-hour
interview with Packer and a review of his previous medical
records. AR 518, 523. In the report, Dr. Wojcik diagnosed
Packer with depression, panic disorder, internet gaming
disorder, and cannabis use disorder (though that disorder is
described as “in remission”). AR 528. Dr. Wojcik also noted
10 that Packer had a “personality disorder,” due to his “avoidance
of social activities, his having little interest in having
sexual experiences with his girlfriend, his lack of close
friends, and his flat affect.” AR 528.
The ALJ’s mental RFC determination is supported by
substantial evidence because it is the result of the ALJ’s
weighing of the various medical experts’ opinions. While Dr.
Burns, Dr. Griffin, and Dr. Wojcik all opined that Packer would
have difficulty getting along with others in the workplace,
their opinions did not conclusively establish that he had a
mental disorder that would prevent him from working with others.
Furthermore, Dr. Burns, who examined Packer directly (and did
not merely review his medical records), found that Packer was
“able to communicate and interact with people around him
adequately” and was “able to concentrate and focus his energies
undertake.” AR 384. Moreover, Dr. Martin noted that Packer was
only moderately limited in his “ability to work in coordination
with or in proximity to others” and his “ability to interact
appropriately with the general public.” AR 135. Therefore, the
ALJ’s RFC, which stated that Packer “may only have brief and
11 superficial interaction with the general public,” was supported
by the opinion of multiple experts. AR 27.
Moreover, the ALJ included the same limitations from the
RFC in the hypothetical posed to the vocational expert. AR 118.
The ALJ stated that the hypothetical individual “can ask simple
questions and request assistance . . . accept simple
instructions, and respond appropriately to non-confrontational
supervisory criticism . . . [and] should have a somewhat
isolated workspace in order to avoid being distracted by
coworkers and the general public.” AR 118. Despite these
limitations, the vocational expert stated there were still jobs
in the national economy that the hypothetical claimant could do. 2
AR 118-119.
2. Physical RFC: Limited use of his Hands
Packer claims that the ALJ erred by rejecting the opinion
of his “treating source,” Dr. Khosro Frahad, without good
reason. Doc. 9 at 11. The Commissioner agrees that Dr. Farhad
2 When the ALJ further modified the hypothetical to require a work environment of “total isolation,” there were no jobs that the hypothetical claimant could perform. AR 120. But, as stated above, Packer’s RFC did not require total isolation, and therefore, this more restricted hypothetical does not apply to him. 12 is Packer’s treating source, but argues that the ALJ properly
considered and rejected Dr. Farhad’s opinion because it was not
supported by other substantial evidence in the record. Doc. 18-
1 at 17.
An ALJ must give a “treating source’s” opinion “controlling
weight” if that opinion is well-supported and consistent with
substantial evidence. 20 C.F.R. § 404.1527(c)(2); see Foley v.
Astrue, No. 09-10864, 2010 WL 2507773, *8 (D. Mass. June 17,
2010). Even if a treating source’s opinion does not satisfy
these requirements, “it may be ‘entitled to deference.’”
Douglas v. Colvin, 2016 DNH 176, *6 (quoting SSR 96–2p, 1996 WL
374188, at *4 (July 2, 1996)). Further, if the ALJ rejects the
opinion of a treating source, the ALJ must give “good reasons”
for his determination, which must be “both specific and
supportable.” Jenness v. Colvin, 2015 DNH 167, *6 (citations
omitted). If, on the other hand, it is not possible to
“determine whether the medical opinion evidence was considered
[by the ALJ] and implicitly discredited or instead was simply
overlooked,” I must remand. Kenerson v. Astrue, 2011 DNH 074,
*4 (internal quotations omitted). As long as the ALJ satisfies
this standard, I will uphold his decision to discount a treating
13 source’s opinion. Costa v. Astrue, 565 F.Supp.2d 265, 271 (D.
Mass. 2008).
The record contains evidence of two examinations by Dr.
Farhad, in November 2014 and June 2015. In November 2014, Dr.
Farhad examined Packer and diagnosed him with Polyneuropathy.
AR 505, 507. Symptoms of his polyneuropathy included an
“intermittent burning sensation in his feet” and “chronic lower
back pain.” AR 505.
In June 2015, Dr. Farhad examined Packer again, and filled
out a check-box form entitled “Medical Source Statement of
Ability to do Work-Related Activities.” AR 395. Dr. Farhad
stated that Packer could only occasionally lift “less than 10
pounds,” stand “less than 2 hours in an 8-hour workday,” and had
limited ability to use his hands for “reaching,” “handling,”
“fingering,” and “feeling.” AR 395, 397.
The record also contains evaluations of Packer’s physical
capabilities by other physicians. Dr. David Lunianski, Packer’s
primary care physician, examined Packer both in May 2014 and
June 2015. AR 362, 475. In the 2014 evaluation, Dr. Lunianski
noted that Packer was “extremely overw[eigh]t,” had “lumbar back
pain” that was “dull and non-radiating,” and did not have
14 numbness, tingling, or weakness in his lower extremities or
feet. AR 362. Notably, Dr. Lunianski noted that Packer could
“occasionally lift and/or carry [up to] 20 pounds.” AR 475.
In the 2015 evaluation, Dr. Lunianski completed the same
check-box form that Dr. Farhad had completed, entitled “Medical
Source Statement of Ability to do Work-Related Activities.” AR
475. He stated that Packer could occasionally lift 20 pounds,
stand or walk for at least two hours in an eight hour work day,
has an unlimited ability to use his hands for handling or
fingering, and a limited ability to use them for reaching and
feeling. AR 475, 477. Dr. Lunianski added several written
noted to the check-box form, including one stating, “Packer
smokes excessively and is not in good condition. He gets short
of breath when walking and has difficulty standing for any
per[iod] of time due to foot, leg, [and] back pain.” AR 475.
In July 2014, Dr. Burton Nault reviewed Packer’s medical
records in order to complete a Physical Residual Functional
Capacity Assessment. AR 132-134. He noted that Packer could
occasionally lift twenty pounds, stand or walk for up to two
hours per day, occasionally climb ramps or stairs, balance, bend
over, kneel, crouch, or crawl, and never climb ladders. AR 132-
15 33. These limitations were due to Packer’s obesity and
diabetes. AR 134.
In September 2015, Dr. Robert Allister examined Packer and
found that he had “carpal tunnel syndrome,” “foot and leg pain,”
but “normal” “muscle strength and tone.” AR 410-11.
The ALJ evaluated these various medical opinions, and
stated that Packer had an RFC in between sedentary work and
light work. AR 27. See 20 C.F.R. § 404.1567(a)&(b). The ALJ
stated Packer could do “sedentary work” – a job requiring
“lifting no more than 10 pounds at a time and occasionally
lifting or carrying [light objects] and small tools” and
involving occasional walking and standing, see id., – but he
could also “carry 10 pounds frequently and 20 pounds
occasionally,” never climb ladders, ropes, or scaffolds, and
“occasionally climb ramps and stairs, balance, stoop, crouch,
[or] crawl.” AR 27.
In reaching this conclusion, the ALJ obviously accepted
some of Dr. Farhad’s opinion and included some physical
limitations, but rejected Dr. Farhad’s finding that Packer could
not use his hands. AR 33. The ALJ reached this conclusion for
multiple reasons. First, the ALJ stated, “With respect to the
16 claimant’s allegations of neuropathic pain and sensory loss
affecting the bilateral hands, I find no objective evidence to
support these allegations.” AR 29. She noted, “neurological
records do not document any evidence of muscle weakness or
reduced grip strength in the claimant’s bilateral hands.” Id.
Furthermore, she specifically credited Dr. Lunianski’s opinion
“that [Packer] can lift up to 20 pounds occasionally, stand and
walk at least 2 hours in an 8-hour workday, and has no
restriction on sitting.” AR 33. As shown above, Dr.
Lunianski’s opinion that Packer could do some minimal lifting,
carrying, and walking is consistent with the opinions of Dr.
Nault and Dr. Allister, while no other physician, nor the
medical records, support Dr. Farhad’s opinion. This is
sufficient to support the ALJ’s RFC determination. 3 See
Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3
3 The ALJ also noted that Packer’s activities of daily life – most notably, his excessive video game playing – support a finding that he has no issues with manual dexterity. Packer takes issue with this reasoning because he claims the ALJ did not have any evidence of the type of video games he played, and whether they actually required manual dexterity. Even assuming that the ALJ should not have considered Packer’s activities of daily life, there is sufficient other evidence in support of the ALJ’s physical RFC determination.
17 (1st Cir. 1987) (ALJ can discount the opinion of a doctor if it
is inconsistent with other evidence in the record).
B. Vocational Expert Opinion (Step Five)
Packer argues that the vocational expert’s opinion was
invalid because the jobs that the vocational expert testified
Packer could do were classified as “light” in the Dictionary of
Occupational Titles (DOT), while his RFC explicitly restricted
him to “sedentary” work. Doc. 9 at 13.
Generally, an ALJ can rely on the opinion of a vocational
expert to determine whether a claimant is disabled if the
vocational expert’s opinion is consistent with the DOT. 4 SSR 00-
4p, 2000 WL 1898704, at *2 (Dec. 4, 2000); see Sanchez v.
Colvin, 134 F. Supp. 3d 605, 619 (D. Mass. 2015); Szumylo v.
Astrue, 815 F. Supp. 2d 434, 441 (D. Mass. 2011).
Here, the ALJ determined that Packer’s RFC allowed him to
do “sedentary work . . . except he can lift and carry 10 pounds
frequently and 20 pounds occasionally[,] . . . cannot climb
ladders[,] ropes[,] and scaffolds[,] . . . can occasionally
climb ramps and stairs, balance, stoop, crouch, and crawl[, and]
4 If the opinion is inconsistent with the DOT, the ALJ must give other reasons for relying on the vocational expert’s opinion.
18 may only have brief and superficial interaction with the general
public.” AR 27.
The hypothetical that the ALJ posed to the vocational
expert described an individual who could,
[lift] 20 pounds occasionally, 10 pounds frequently, standing and walking up to two hours per day, sitting for six [hours], occasional stairs and ramps, occasional balance, stoop, kneel, crouch, and crawl, no ladders, ropes or scaffolds. . . can ask simple questions and request assistance, he is able to accept simple instructions, and respond appropriately to a non-confrontational supervisory criticism[, and] [h]e should have a somewhat isolated workspace in order to avoid being distracted by coworkers and the general public.
AR 116-118.
In response to this hypothetical, the vocational expert
stated that Packer could work as a “hand package inspector,”
“price marker,” and “electric assembler.” AR 35. The DOT
classifies all of these jobs as “light,” which is one step more
strenuous than the “sedentary” category of jobs. See 20 C.F.R.
§ 404.1567 (“Physical exertion requirements”).
Packer argues that the vocational expert’s testimony that
the hypothetical claimant with a “sedentary” RFC could do these
three jobs is inconsistent with the DOT, which classifies these
jobs as “light.”
19 If Packer’s RFC was merely for “sedentary” work, and if the
vocational expert had testified that the hypothetical claimant
could perform “light” work, with no modification, then I would
agree. But, this is not the case. As shown above, Packer’s RFC
allowed him to do “sedentary” work and to carry 10 pounds
frequently and 20 pounds occasionally, walk up stairs and ramps,
and balance, stoop, kneel, crouch, and crawl. AR 27.
Therefore, his RFC was somewhere in between complete “sedentary”
work and “light” work. See Blankenship v. Comm’r of Social
Sec., 624 Fed. Appx. 419, 427 (6th Cir. 2015) (permitting an RFC
determination between “sedentary” and “light” work, and
rejecting an “either/or dichotomy between light work and
sedentary work”).
Moreover, the vocational expert did not merely list “light”
jobs in his opinion. The vocational expert noted that not every
single job in each category requires “light” exertion. AR 118.
He then reduced the number of jobs that the hypothetical
claimant could perform in each category, to correspond with the
hypothetical claimant’s ability. Id. The vocational expert
thus stated that the hypothetical claimant could only perform 70
percent of the jobs available as a hand package inspector, 50
20 percent of the jobs available as a price marker, and 70 percent
of the jobs as an electrical assembler. See Fenton v. Apfel,
149 F.3d 907, 911 (8th Cir. 1998) (affirming the ALJ’s reliance
on a vocational expert who testified that a claimant whose RFC
was in between sedentary and light work could perform 10 percent
of the light unskilled jobs). Even after these reductions,
there was still a significant number of jobs in the national
economy that the hypothetical claimant could do. Therefore, the
vocational expert’s testimony was consistent with the DOT, and
so I affirm the ALJ’s decision.
IV. CONCLUSION
For the aforementioned reasons, I grant the Acting
Commissioner’s motion to affirm, Doc. 18, and deny Packer’s
motion to reverse, Doc. 9. The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 30, 2018
cc: Alexandra M. Jackson, Esq. 21 Karen B. Fitzmaurice, Esq. Robert J. Rabuck, Esq.