UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John P. Chippendale, Claimant
v. Case No. 14-cv-55-SM Opinion No. 2015 DNH 008
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g), claimant, John P.
Chippendale, moves to reverse or vacate the Acting Commissioner’s
decision denying his applications for Disability Insurance
Benefits (“DIB”) under the Social Security Act, 42 U.S.C. § 423
(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
On August 2, 2011, claimant filed an application for
Disability Insurance Benefits, alleging that he had been unable
to work since August 1, 2010, due to blindness in his right eye caused by central retinal artery occlusion1 and double vision in
his left eye, osteoarthritis of his knees, post-traumatic stress
disorder (“PTSD”), and tinnitus. That application was denied on
December 22, 2011, and claimant requested a hearing before an
Administrative Law Judge (“ALJ”), at which time claimant also
amended his claim to include intermittent bilateral shoulder
pain.
On December 27, 2012, claimant, appearing pro se, and a
vocational expert appeared before an ALJ, who considered
claimant’s application de novo. The next day, 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.
The Appeals Council denied claimant’s request for review,
making the ALJ’s denial of claimant’s applications the final
decision of the Acting Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by substantial
evidence. Claimant then filed a “Motion for Order Reversing the
Decision of the Commissioner” (document no. 6). In response, the
1 A retinal artery occlusion is a blockage in an artery that carries blood to the retina, the part of the eye that detects light. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002023/.
2 Commissioner filed a “Motion for Order Affirming the Decision of
the Commissioner” (document no. 8). 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. 9), 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); see
also Irlanda Ortiz v. Sec’y of Health & Human Servs., 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
3 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).
This court’s review of the ALJ’s decision is, therefore,
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 he is disabled under the Act.
Rather, the court’s inquiry is “limited to determining whether
the ALJ deployed the correct 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, the court must sustain those
findings even when there may also be substantial evidence
supporting the contrary position. See, e.g., Tsarelka v. Sec’y
of Health & Human Servs., 842 F.2d 529, 535 (1st Cir. 1988);
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981).
II. The Parties’ Respective Burdens
An individual seeking DIB 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
4 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. Sec’y of Health & Human Servs, 944 F.2d 1, 5 (1st
Cir. 1991). To satisfy that burden, the claimant must prove, by
a preponderance of the evidence, that 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. Sec’y of
Health & Human Servs., 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. Sec’y of Health &
Human Servs., 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v.
5 Sec’y of Health & Human Servs., 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 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).
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. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: August 1, 2010.
Admin. Rec. at 14. Next, he concluded that claimant suffers from
several impairments which are “severe” in that they “impose
significant limitations on the claimant’s ability to perform
6 basic work activities.” Id. They are: “central retinal artery
occlusion and osteoarthritis status post knee replacement
bilaterally.” Id. Nevertheless, the ALJ determined that those
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
17. Claimant does not challenge any of those findings.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) “to perform the exertional demands of
light work as defined in 20 C.F.R. 404.1567(b) except he can
occasionally climb ladders, ropes, scaffolds, ramps, and stairs,
crouch, crawl, bend, kneel, and stoop. He has monocular vision
due to right eye blindness. He should avoid moderate exposure to
noise.”2 Admin. Rec. at 17. In spite of those restrictions, and
the vocational expert’s opinion to the contrary based on the
hypothetical presented by the ALJ involving a worker with the
2 “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 above-listed limitations, the ALJ concluded that claimant was
capable of returning to his prior job. 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.
Discussion
Claimant challenges the ALJ’s decision essentially on the
following bases: (1) his decision that claimant could perform
light work was not supported by substantial evidence; (2) he
rejected the vocational expert’s opinion that claimant would be
unable to perform the demands of his past work; and (3) he failed
to properly weigh the medical evidence.
I. Claimant’s Residual Functional Capacity
Claimant first challenges the ALJ’s determination that he
was capable of performing light work, including his past work,
asserting that the ALJ failed to give appropriate weight to the
opinions of Dr. Cheryl Bildner, Ph.D., a state agency consultant
who examined claimant for the purpose of determining whether he
was disabled, and the vocational expert, Howard D. Steinberg.
Claimant’s Memorandum (document no. 6) at 2. Consequently, he
claims the ALJ’s decision that he could perform the rigors of his
past work as an office machine servicer, designated as “light
work” in the Dictionary of Occupational Titles, 633.281-018
(2001), is not supported by substantial evidence.
8 There is, to be sure, evidence in the record supportive of
claimant’s assertion that he is disabled. As he points out, Dr.
Bildner opined that claimant was “unable to sustain attention and
concentration for prolonged periods of time,” that he was “unable
to persist at tasks,” and that his “[p]ace of task completion
[was] likely to be delayed.” Admin. Rec. at 298. Dr. Bildner
diagnosed claimant as having “Major Depressive Disorder,
recurrent, moderate severity”; “Posttraumatic Stress Disorder”;
and “hypertension, hypolipoproteinemia, tinnitus, gout, bilateral
total knee replacement, [and] central retinal vein occlusion.”
Id.
The vocational expert who appeared at claimant’s December
2012 hearing opined in response to the ALJ’s hypothetical
description of someone with claimant’s limitations that he did
“not believe that the past work could be performed.” Id. at 36.
The vocational expert’s testimony, alone or combined with the
limitations described by Dr. Bildner, could serve as substantial
evidence of claimant’s inability to perform his past relevant
work. See Arocho v. Sec’y of Health & Human Servs., 670 F.2d
374, 375 (1st Cir. 1982).
However, at step four of the five-step analysis for
determining whether an individual is disabled under 20 C.F.R.
§ 404.1520(a), the claimant bears the burden of proving that his
9 impairments prevent him from performing his past relevant work.
§ 404.1512©); Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
Further, an “ALJ is not required to elicit the testimony of a
vocational expert” to determine the claimant’s capacity to
perform past relevant work. Santos-Martinez v. Sec’y of Health
& Human Servs., 54 F.3d 764, at *2 (1st Cir. 1995); see also
Stanton v. Astrue, 370 F. App’x 231, 235 (2d Cir. 2010). Thus,
the ALJ was not required to consult, or to accept, a vocational
expert’s opinion to determine claimant’s RFC to perform his past
relevant work, and his decision to reject the vocational expert’s
opinion as inconsistent with the record and rely instead on the
prior vocational analysis performed as part of the adjudication
of claimant’s application is not in error. See Admin. Rec. at
43-47; see also Roma v. Astrue, No. 07-1057, 2010 WL 34418166, at
*5 (D. Conn. Aug. 24, 2010) (holding that the ALJ is permitted to
rely on a State agency adjudicator’s vocational analysis).
Furthermore, there is substantial evidence in the record to
support the ALJ’s contrary conclusion that claimant is capable of
performing light work. As the ALJ noted, Dr. Bildner, on whose
opinion claimant urges this court to rely to reverse the ALJ’s
decision, also opined:
Claimant was alert and oriented to person, place, time, and situation. Claimant was able to recall 3/3 words immediately and 3/3 words following a five minute delay. He recalled the third word with a prompt.
10 Claimant was able to spell the word “world” correctly forward and backward. Attention and concentration were good. Intelligence and fund of knowledge are estimated to be within the average range. Claimant could follow simple directions. Insight and judgement (sic) appeared intact. Motivation is fair.
Admin. Rec. at 16, 296. She further opined claimant was “able to
complete activities of daily living. He dresses daily, maintains
his hygiene, assists with household chores, prepares meals,
manages affairs and drives short distances.” Id. at 16, 297.
Dr. Bildner also opined that claimant “is able to interact
appropriately and communicated effectively with others,”
“understand and remember locations and work-like procedures” with
“no gross deficits . . . in cognitive functioning,” “tolerate
stress associated with a work setting,” “make simple
[decisions],” “interact appropriately with supervisors,” and
manage funds on his own behalf. Id. at 16, 297-98. Finally, Dr.
Bildner concluded that claimant “exhibits limited motivation to
return to work.” Id. at 298.
In addition to this evidence from Dr. Bildner that supports
the ALJ’s decision that claimant is capable of performing light
work, another state agency consultant, Dr. John MacEachran, whom
the ALJ recognized did not examine claimant but reviewed the
record, opined that claimant is capable of lifting up to fifty
pounds occasionally and up to twenty pounds frequently and
sitting, standing, or walking for six hours in an eight-hour work
11 day with normal breaks, with no postural or manipulative
limitations. Id. at 43-44. Dr. MacEachran acknowledged
claimant’s visual limitations caused by claimant’s compensated
monocular vision, including limited near acuity, far acuity,
depth perception, and field of vision. Id. at 44. Dr.
MacEachran concluded that claimant’s limited vision does not
constitute a “significant factor or limitation in most
workpl[a]ce functions,” noting that claimant “retains [the]
ability to drive,” notwithstanding his visual limitations. Id.
On September 11, 2012, Dr. Mehl, claimant’s primary care
physician from at least February through August 2012,3 opined
that claimant could continuously lift up to one hundred pounds;
could sit, stand, or walk up to eight hours each day without
interruption; and could perform normal activities with his hands
and feet, including postural activities such as climbing stairs,
stooping and kneeling, and crouching. Id. at 282-85. Dr. Mehl
acknowledged that claimant is visually impaired in his right eye
but stated that he is still able to avoid ordinary workplace
hazards, read very small print, read ordinary newspaper or book
print, view a computer screen, and discern differences in shape
3 Although claimant denies that Dr. Mehl was his primary care physician, the record provides substantial documentary evidence to support the ALJ’s conclusion that she was. Admin. Rec. at 247-56, 268-72, 282-87.
12 and color of small objects such as screws, nuts or bolts. Id. at
285.
As the ALJ noted, Dr. Mehl’s opinion is consistent with
claimant’s ability to do heavy work. Although she was a treating
physician, and the ALJ was entitled to give her opinion
controlling weight, see 20 C.F.R. § 404.1527(c)(2), the ALJ
exercised his judgment and afforded her opinion great, but not
controlling, weight because it was unclear how long she had
treated claimant and because her opinion that claimant could
perform heavy work was not wholly consistent with the record,
especially in light of “claimant’s status post knee replacement.”
Id. at 20. These medical opinions, including that of Dr.
Bildner, constitute substantial evidence supporting the ALJ’s RFC
determination that claimant could perform light work.
Finally, and not insignificantly, claimant’s own function
report supports the ALJ’s conclusion that claimant is capable of
performing light work, including his past relevant work. Id. at
111-26. As the ALJ noted, claimant stated that he had some
physical limitations due to the blindness in his right eye and
osteoarthritis of his knees, such as double vision, reduced depth
perception, and headaches, he also reported that he cuts the
grass and does “minor household repairs,” drives a car, pays
bills and uses a checkbook, watches television, and golfs,
13 although he uses a golf cart and is told where his ball is if he
cannot find it. Id. at 111-15. Claimant also testified at his
December 2012 hearing that the vision in his left eye is 20/20
and that he has been doing “a little bit of renovation . . . on
the house for the past seven or eight years.” Id. at 30, 34.
This record evidence, combined with the fact that claimant
did actually perform his previous employment for approximately
six years after losing the vision in his right eye, supports the
ALJ’s RFC determination that claimant retains the capacity to
perform light work, including his past relevant work.
II. Medical Opinion Evidence
In addition to challenging the ALJ’s RFC determination,
claimant also asserts the ALJ failed to weigh properly all
relevant medical evidence. Specifically, he challenges the ALJ's
decision to give “great weight” to the opinions expressed by one
of his treating physicians, Dr. Mehl, see Admin. Rec. at 247-56,
268-72, 282-87, and Dr. William Jamieson, Ph.D., a state agency
consultant who examined the record but not claimant, id. at 39-
43, 45-46, and too little weight to the opinions expressed by Dr.
Cheryl Bildner, Ph.D., a state agency consultative psychologist
14 who examined claimant as part of his disability application, id.
at 295-99.4
The ALJ was entitled to afford Dr. Mehl’s opinion great, but
not controlling, weight. As claimant recognizes, the opinion of
a treating physician will be given controlling weight if it is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record . . . .”
20 C.F.R. § 404.1527(c)(2). When the ALJ does not give
controlling weight to a treating physician’s opinion, she must
determine what weight, if any, to give it in accordance with the
following factors: (1) the length of the treatment relationship
and the frequency of examination; (2) the nature and extent of
the treatment relationship; (3) the degree to which the opinion
is supported by relevant medical evidence and explanations; (4)
the consistency of the opinion with the record as a whole; (5)
whether the physician is expressing an opinion in her field of
expertise; and (6) other factors claimant or others bring to the
ALJ’s attention, or of which the ALJ is aware, which tend to
support or contradict the opinion. See id. at § 404.1527(c)(2)-
(6).
4 Claimant’s contention that the ALJ should have also relied on the vocational expert in his analysis of the medical evidence is rejected, as previously explained in this order.
15 The record shows that Dr. Mehl was claimant’s primary care
physician from at least February through August 2012. See Admin.
Rec. at 247-56, 268-72, 282-87. She regularly signed off on
examination and treatment notes during that time and completed
claimant’s Medical Source Statement as his “primary care”
physician on September 11, 2012. Id. at 287. The ALJ did not
give Dr. Mehl’s opinion that claimant could perform work at all
exertional levels controlling weight because the length of time
claimant received treatment from Dr. Mehl was unclear from the
record. Id. at 20. However, because her opinion was “largely
consistent with and supported by the evidence of record,” the ALJ
gave it “great weight” as he was entitled to under the
regulations. Id.
While it is true that Dr. Mehl is not a specialist in
psychological behavior, as claimant points out, she is a
physician who had at least six month’s experience treating
claimant, and her opinions are generally consistent with those of
Dr. Bildner, as set out above, and Dr. Jamieson, both
psychologists, concerning at least claimant’s ability to sit,
stand, walk, follow instructions, and attend to his financial
affairs. To the extent that she drew conclusions from her
observations of claimant that are inconsistent with other medical
evidence in the record and claimant’s function report — that
16 claimant could lift and carry up to one hundred pounds for
example — the ALJ rejected those conclusions.
The ALJ also properly considered and evaluated the opinion
of Dr. Jamieson. While noting that he did not examine claimant,
the ALJ recognized that he did examine the record and the
opinions of treating and examining doctors. See Admin. Rec. at
16, 20. “As a general matter, an ALJ may place ‘[g]reater
reliance’ on the assessment of a non-examining physician where
the physician ‘reviewed the reports of examining and treating
doctors . . . and supported [[his] conclusions with reference to
medical findings.’” Ferland v. Astrue, No. 11-123, 2011 U.S.
Dist. LEXIS 126188, at *10-*11 (D.N.H. Oct. 31, 2011) (quoting
Quintana v. Comm’r of Social Security, 110 Fed. Appx. 142, at *1
(1st Cir. 2004)); see also 20 C.F.R. § 404.1527(c)(3) (“[B]ecause
nonexamining sources have no examining or treating relationship
with you, the weight we will give their opinions will depend on
the degree to which they provide supporting explanations for
their opinions.”).
The ALJ specifically stated that Dr. Jamieson “gave weight
to the opinion of Dr. Bildner, but “noted that her opinion
regarding the claimant’s inability to sustain attention or
consistent schedule were discounted, as they were unsupported by
objective findings.” Admin. Rec. at 16.
17 As the ALJ noted, the problem with Dr. Bildner's opinion
that claimant “is unable to sustain attention and concentration
for prolonged periods of time” and that his “[p]ace of task
completion is likely to be delayed” is that it is inconsistent
with the balance of claimant's medical records, including other
portions of her own report, as set out above in this order. Id.
at 16.
Thus, while there is certainly evidence in the record to
support claimant’s assertions of disabling impairments, there is
also substantial countervailing evidence to support the ALJ’s
conclusion that claimant is not totally precluded from all
gainful activity. Consequently, there is no basis for the court
to vacate the ALJ’s conclusion.
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 he 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,
supported by substantial evidence - as they are in this case -
18 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. Sec’y of Health & Human
Servs., 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. Sec’y of Health & Human
Servs., 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.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the 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,” as that term is used in the Act, at any time prior to
the date of his decision (December 28, 2012). Both the ALJ’s RFC
determination and his conclusion that claimant is able to perform
his past relevant work are well-reasoned and well-supported by
substantial documentary evidence.
For the foregoing reasons, as well as those set forth in the
Acting Commissioner’s legal memorandum, claimant’s motion to
19 reverse the decision of the Commissioner (document no. 6) is
denied, and the Acting Commissioner’s motion to affirm her
decision (document no. 8) 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 15, 2015
cc: Brenda M. Golden Hallisey, Esq. T. David Plourde, Esq.