Martel v. SSA

2013 DNH 157

• Court: District Court, D. New Hampshire
• Decided: November 18, 2013
• Docket: 13-cv-48-PB
• Status: Published

Opinion

Martel v . SSA 13-cv-48-PB 11/18/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel Martel

v. Civil N o . 13-cv-48-PB Opinion N o . 2013 DNH 157 U.S. Social Security Administration, Commissioner

MEMORANDUM AND ORDER

Daniel Martel seeks judicial review of a ruling by the

Commissioner denying his application for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”).

Martel claims that findings of the Administrative Law Judge

(“ALJ”) regarding his residual functional capacity (“RFC”) and

his ability to perform past relevant work are not supported by

substantial evidence. For the reasons set forth below, I deny

Martel’s request and affirm the decision of the Commissioner.

I. BACKGROUND1

A. Procedural History

Martel applied for DIB and SSI on June 2 8 , 2008, alleging a

disability onset date of April 2 3 , 2006. After the Commissioner

denied his application, Martel requested a hearing before an

1 The background information is taken from the parties’ Joint Statement of Material Facts (Doc. N o . 1 1 ) . Citations to the Administrative Transcript are indicated by “Tr.” ALJ, which was held on February 1 8 , 2010. Martel was

represented by an attorney and testified at the hearing, but no

medical or vocational expert (“VE”) testified. On April 2 2 ,

2010, the ALJ issued a decision finding that Martel was not

disabled under the Social Security Act. On July 2 6 , 2010, the

Social Security Decision Review Board, after reviewing Martel’s

claim, remanded the case to the ALJ to hold a second hearing and

further develop the record.

On June 1 6 , 2011, the ALJ held a second hearing. Martel,

again represented by an attorney, testified, as did a medical

expert and V E . On July 2 8 , 2011, the ALJ issued his decision,

again finding Martel not disabled. On December 3 , 2012, the

Appeals Council denied Martel’s request for review, making the

ALJ’s decision the Commissioner’s final decision and therefore

subject to judicial review.

B. Medical History

Martel was fifty-two years old on his alleged onset date.

From roughly 1977 to 1995, he worked as a machine operator.

After his employer closed its facility, Martel worked as a

general laborer through various temporary employment agencies

from 1995 until 2006. During this period, he worked as a

machine operator, fabrics layer, and mail sorter, among other

positions. T r . at 280. Martel claims that he became disabled 2 in 2006 due to both physical and mental impairments.

1. Alleged Physical Impairments

In August 2002, Martel underwent a liver biopsy for

hepatitis C , resulting in a final diagnosis of “chronic

hepatitis C with grade 3 activity and stage 3 fibrosis.”2 In a

consultative examination with D r . Darlene Gustavson, Psy.D.,

Martel reported that hepatitis had never interfered with his job

functioning. T r . at 342. D r . Gustavson included a diagnosis of

hepatitis B and C in her final report. D r . John Newcomb also

noted Martel’s history of hepatitis. In March 2011, nurse

practitioner Jill S t . George ordered further laboratory testing

for Martel’s hepatitis. At his February 1 8 , 2010 hearing,

Martel was questioned by his attorney about his hepatitis. He

reported that he had the disease, but expressed uncertainty as

to what treatments he received. T r . at 3 5 . During his June 1 6 ,

2011 hearing, Martel noted that he had once undergone treatment

for five months, but stopped when it made him sick. T r . at 6 1 .

2. Alleged Mental Impairments

a. Treatment Notes

From at least March 2006 through December 2009, Martel was

2 Chronic hepatitis C is a viral liver disease that often progresses to cirrhosis. Stedman’s Medical Dictionary 875-76 (28th ed. 2006). Fibrosis is the “[f]ormation of fibrous tissue as a reparative or reactive process.” Id. at 726. 3 treated by Leslie Clukay, a nurse practitioner at the Mental

Health Center of Greater Manchester. Clukay’s treatment notes

from this period consistently refer to Martel as “anxious” and

note that his speech was hesitant on several visits. At times,

Martel’s mood was described as “euthymic” or “not depressed.”3

Medication lists show that Martel frequently took Zoloft, though

in February 2009 he switched to Citalopram after complaining

about Zoloft’s ineffectiveness.4 In July 2009 Clukay

discontinued Citalopram and switched Martel back to Zoloft.

On a visit in September 2006, Martel denied having

depressive symptoms and reported feeling “really good,” but was

noted to be quite anxious at baseline. In January 2007, Martel

reported that he wanted to work but was limited by his inability

to drive. In September 2007, Martel expressed frustration with

his continuing job search. Otherwise, he reported feeling “ok”

3 Euthymia is a mental state involving “moderation of mood, not manic or depressed,” and can present as “joyfulness[ or] mental peace and tranquility.” Id. at 678. 4 Zoloft is prescribed for the treatment o f , among other conditions, social anxiety disorder, major depressive disorder, and panic disorder. Physicians’ Desk Reference 2588 (61st ed. 2007). Citalopram is used to treat depression, but can be used off-label to treat anxiety and panic disorders. See, e.g., I . Varia & F. Rauscher, Treatment of Generalized Anxiety Disorder with Citalopram, 17 Int’l Clinical Psychopharmacology, May 2002, at 103-07 (clinical study finding that Citalopram may be an effective treatment for generalized anxiety disorder).

4 and that his medication was “fine.” T r . at 322. Clukay

observed no evidence of depressive or panic symptoms, but noted

that Martel’s affect was flat. Id. Martel reported continuing

frustration with his job search and unemployment in January

2008, at which point he also reported panic upon leaving his

house. In May 2008, Martel reported continuing to avoid crowds

and social situations and requested a decrease in his medication

dosage to alleviate a side-effect of excessive sweating.

In February 2009, Martel reported being more anxious and

that his medication was not working. At this point, Clukay

characterized Martel’s mood as “anxious, not depressed.” T r . at

38. During a follow-up appointment in May, Martel said that the

medication made him less anxious and that his mood had

stabilized. Clukay found Martel’s attention span and

concentration to be normal, his memory intact, his mood

euthymic, and his affect very anxious. In July 2009, Martel

reported that he had ceased taking medication due to its

ineffectiveness and reported increased depressive and anxious

symptoms. Clukay observed that Martel’s memory was intact and

attention span and concentration were normal, though he was

anxious and preoccupied. She discontinued Citalopram and again

prescribed him Zoloft. In August 2009, Clukay noted that Martel

reported “increased depressive symptoms.” T r . at 383. 5 b. Consultative Examinations and Opinions

i . D r . Darlene Gustavson

On August 2 9 , 2008, D r . Gustavson conducted a consultative

psychological evaluation of Martel. Martel rode his bicycle to

the appointment, explaining that he had lost his driver’s

license in 2006 for a second DUI offense and did not wish to

reinstate i t . D r . Gustavson, noting Martel’s profuse sweating,

facial expressions, and hand-wringing, observed that he appeared

extremely anxious. Martel often answered questions slowly and

vaguely, especially concerning alcohol consumption. When he

began answering questions honestly, he appeared less anxious.

Martel acknowledged drinking two beers before the eleven a.m.

evaluation and reported that he drinks at least ten beers per

day “to face the world”. He admitted to drinking heavily since

his early twenties.

Assessing his own mental condition, Martel reported

depression beginning in childhood and described his symptoms as

chronic, including never being happy; feeling worthless,

helpless, apathetic, fatigued, and socially isolated; having

passive suicidal thoughts; sleeping excessively; and having a

decreased appetite when drinking. He also reported anxiety

since childhood, manifesting in symptoms including avoiding

social situations, discomfort in conversation, nervousness, and 6 hand-wringing. Martel stated that he felt safe when by himself

and nervous when outside his home. When nervous, he reported

excessive sweating, which in turn only made him more self-

conscious. Martel reported that he had been seeing a

psychiatrist quarterly since the 1990s, that he was currently

prescribed Zoloft, and that he had never been psychiatrically

hospitalized.

Martel also discussed his family, social, and environmental

history. He reported living with his father, brother, and

brother’s girlfriend. He described a positive relationship with

his family, but noted no other significant intimate

relationships. Martel dropped out of school after ninth grade,

but later obtained his GED. While in school he was not enrolled

in special education programs, but reported a history of

learning difficulties and assessed himself as a “slow learner.”

Martel reported that he previously worked at Anchor

Electric, beginning as a spot welder before working as a metal

cutter for seventeen years. After the company went out of

business in 1995, Martel held only temporary positions. He

reported that his most recent job involved stacking pallets,

where he was let go after six weeks for being too slow. Dr.

Gustavson noted that his dismissal, in 2006, coincided with the

loss of his driver’s license, and that the lack of 7 transportation played a role in his failure to find another

position. Describing his work history, Martel reported no

reprimands or warnings and claimed that he was able to follow

instructions, communicate with supervisors, and maintain

attendance.

Assessing Martel’s mental status, D r . Gustavson first noted

his appropriate hygiene but disheveled appearance. Martel’s

motor activity was jittery and anxious, and his speech was

delayed at times, which D r . Gustavson reasoned was due to

anxiety and difficulty with comprehension. D r . Gustavson noted,

however, that Martel’s articulation and speech were normal, his

language comprehension appeared intact, and his affect was

appropriate. Martel’s mood was anxious, but as he became less

nervous, he stopped sweating, relaxed his posture, and laughed

and smiled. D r . Gustavson noted that Martel was anxious and his

judgment and insight were limited, but she found him to be

cooperative, with logical thought processes and normal thought

content.

Dr. Gustavson placed Martel’s intellectual functioning in

the low-average to average range, with suspicions of a learning

disability. Martel scored in the normal range with a 27/30 on

8 the Folstein Mini-Mental Status Examination.5

Martel then recounted his typical day: waking up at ten

a.m., drinking beer, reading the newspaper to search for jobs,

completing household chores such as mowing the lawn, eating a

meal prepared by his father, taking medications, attending

appointments as needed, watching television, playing guitar, and

going to bed between 10:00 p.m. and 2:00 a.m. after drinking as

many as ten beers. No social activities were reported, though

Gustavson noted that Martel did not require assistance to attend

to his personal affairs, go shopping, cook, use public

transportation, pay bills, maintain his residence, or care for

his personal hygiene.

Assessing Martel’s current level of functioning, D r .

Gustavson opined that he was able to understand and remember

instructions, to sustain attention and complete tasks, and to

tolerate stresses common to a work environment, including the

ability to make decisions, maintain attendance, and interact

with supervisors. Concerning social functioning, D r . Gustavson

opined that Martel was unable to interact appropriately and

5 The Folstein Mini-Mental Status Examination is a test commonly used to grade a patient’s cognitive state. Marshal F. Folstein et a l . , “Mini-Mental State”: A Practical Method for Grading the Cognitive State of Patients for the Clinician, J. Psychiatric Res., Nov. 1975, at 189-98. The mean score for “normal” individuals is 27.6. Id. at 191. 9 communicate effectively with unfamiliar people. She recommended

that Martel continue mental health treatment and begin a

rehabilitation program. D r . Gustavson diagnosed Martel with

physiological alcohol dependence, generalized social phobia, and

hepatitis B and C .

ii. D r . John Newcomb

On January 2 8 , 2010, Martel underwent a consultative

psychiatric examination with D r . Newcomb. Martel reported

taking Zoloft but believed it to be ineffective. He admitted

past difficulty with alcohol, but claimed to have ceased

drinking in 2007. Martel’s brother drove him to the examination

due to Martel’s claimed inability to drive himself as a result

of anxiety and confusion.

Dr. Newcomb noted that Martel appeared disheveled, but

oriented to time, place, and person. He reported that Martel

had a depressed mood, blunted affect, and admitted to crying

spells.6 D r . Newcomb found that Martel had poor concentration

and “disturbed” memory, with frequent thoughts of suicide but no

plans to act on them. He described Martel’s speech as rambling,

but not indicative of delusions. Martel reported having

6 Blunted affect is “a disturbance in mood seen in schizophrenic patients manifested by shallowness and a severe reduction in the expression of feeling.” Stedman’s Medical Dictionary, supra note 2 , at 3 4 .

10 frequent panic attacks when in crowds or away from home and was

frequently housebound as a result.

Describing his daily activities, Martel reported typically

waking up at 5:00 a.m. after poor sleep, then spending most of

the day in bed watching television. He reported that he never

accomplished much, forewent basic hygiene, and rarely left the

house. D r . Newcomb analyzed Martel as withdrawn and avoidant of

others and diagnosed him with major depressive disorder, panic

disorder with agoraphobia, and alcohol abuse in full sustained

remission. He noted that Martel had high stress and assigned

him a Global Assessment of Functioning (GAF) score of 40. 7

Dr. Newcomb next found that Martel’s depressive disorder

met listing 12.04, 8 opining that his difficulties were “marked”

7 A GAF score of 40 indicates major impairments in several areas. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). The SSA has remarked that the GAF Scale “does not have a direct correlation to the severity requirements in our mental disorders listings,” Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,746, 50,764-65 (Aug. 2 1 , 2000), and the American Psychiatric Association no longer recommends use of the GAF Scale due to “its conceptual lack of clarity . . . and questionable psychometrics in routine practice.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013). 8 The third step of an ALJ’s sequential evaluation, 20 C.F.R. § 404.1520(a)(4)(iii), considers an impairment’s medical severity by examining if it meets the criteria found in the SSA’s “Listing of Impairments.” Listing 12.04 discusses “Affective Disorders,” including disturbances of mood and depressive 11 in each category, and that he suffered repeated episodes of

decompensation. D r . Newcomb also found that Martel’s panic

disorder met Listing 12.06 for Anxiety Related Disorders, again

with marked difficulties and repeated episodes of decompensation

due to anxiety, recurrent severe panic attacks, fear, terror,

and a sense of impending doom occurring on the average of at

least once a week. Based on his own examination and review of

treatment records indicating large doses of antidepressant

medication, D r . Newcomb opined that it was “more likely than

not” that Martel had suffered from debilitating panic and major

depressive disorders since April 1 3 , 2006. T r . at 371. D r .

Newcomb also completed a medical source statement for Martel,

finding a host of “marked” limitations, including at least one

in each listed category: understanding and memory; sustained

concentration and persistence; social interaction; and

adaptation.9 Repeating his diagnoses, D r . Newcomb added clinical

findings of “depressed mood, poor concentration, crying spells,

syndrome. 20 C.F.R. p t . 4 0 4 , subpt. P, app. 1 . To qualify under Criteria A , one needs at least four symptoms, and D r . Newcomb found that Martel had seven. One must also qualify under Criteria B , with at least two areas of marked difficulty or one area of marked difficulty and repeated episodes of decompensation. Id. D r . Newcomb found that Martel had marked difficulties in each area and repeated episodes of decompensation. 9 According to D r . Newcomb, Martel had marked limitations in thirteen of twenty categories. T r . at 367-68. 12 insomnia, suicidal ideation, frequent panic attacks, chronic

daily anxiety, and impaired memory.”

iii. Nurse-Practitioner Clukay’s Opinion

On March 3 , Clukay completed a medical source statement

finding that Martel had “marked limitations” in nine of twenty

possible categories. Clukay diagnosed Martel with a severe,

generalized anxiety disorder as well as panic and mood

disorders, with symptoms including heart palpitations, extreme

sweating, tremors, agitation, restlessness, poor eye contact,

and difficulty maintaining focus. She opined that Martel’s

symptoms were persistent, lifelong, and significantly impaired

his social functioning and ability to sustain a normal work

routine.

c. Physical Examinations

In March 2011, nurse practitioner Jill S t . George examined

Martel. During the examination, Martel complained of fatigue,

weakness, anxiety, and depression. S t . George noted a normal

mood, affect, attention span, and concentration. She

characterized Martel’s depression as stable and noted that he

was treated with Zoloft.

d. State Agency Assessments

On September 1 6 , 2008, Edward Martin, Ph.D., a state agency

psychologist, reviewed the available evidence and completed a 13 Psychiatric Review Technique form. D r . Martin opined that

Martel had mild restrictions in activities of daily living,

moderate difficulties in social functioning, moderate

difficulties in maintaining concentration, persistence, or pace,

and no extended episodes of decompensation. D r . Martin also

completed a mental RFC assessment, finding Martel capable of

remembering locations and work-like procedures and carrying out

instructions without special supervision. He opined that Martel

could maintain a normal schedule and attendance, as well as pay

attention and maintain concentration. He found that Martel

could complete a normal work week without an unreasonable number

of interruptions, ask simple questions and request assistance,

and accept both changes in work settings and instructions and

criticism from supervisors. In his RFC assessment, D r . Martin

noted one particular limitation: Martel should avoid work with

strangers and the general public.

C. Hearings and Other Testimony

1. Function Report

On July 1 4 , 2008, Martel completed a function report in

which he described spending his days reading the newspaper and

help-wanted advertisements, watching television, and applying

for jobs. He reported no problems in caring for himself, though

he occasionally forgot to take his medicine. Martel stated that 14 his father cooked his meals, but that he did chores, including

laundry and lawn mowing. He reported that he could go out alone

to the store, to doctors’ appointments, and to submit job

applications, and that he either walked or rode a bicycle after

his second DUI offense. He reported having no hobbies or social

activities.

Martel noted difficulties getting along with others due to

his quiet nature, but that he could follow written instructions

if not under stressful time deadlines and spoken instructions

provided they were well-explained. Martel reported getting

along well with authority figures and described being fired or

laid off either because he sweated too much, did not talk

enough, or worked too slowly. He denied having any unusual

behaviors or fears.

2. June 1 6 , 2011 Hearing

a. Martel’s Testimony

Martel testified that he lived with his brother and his

brother’s girlfriend, and that from January through April 2011

he worked making gaskets for automobiles. He stated that his

slow pace led to several “write-ups” and that he quit before

being fired. Martel denied having physical problems performing

the job, but testified that anxiety and panic attacks prevented

him from getting another job. 15 Martel also noted that he was uninsured and thus had not

taken Zoloft in the past year, but planned to resume taking i t .

He found the drug was largely ineffective, and reported being

nervous in public places even when taking Zoloft. He diagnosed

himself with an anxiety disorder and clinical depression. Tr.

at 5 8 . Martel testified to spending a typical day in his room

watching television, only leaving the house to attend

appointments or buy alcohol. Martel acknowledged drinking ten

to fifteen beers per day. In the past he had attempted to quit

drinking, with his longest period of sobriety lasting about six

months. When asked if he was capable of working, he replied,

“I’m not sure. I hope s o , but I’m not sure.” When asked what

would prevent him from working, he stated, “It would be anxiety

and panic attacks.” T r . at 6 2 .

b. Medical Expert Testimony

Dr. Herbert Golub, a licensed clinical psychologist and

testifying medical expert, opined that Martel likely had an

anxiety disorder, and suggested it was inappropriate to treat it

with Zoloft. D r . Golub was unable to determine how Martel’s

symptoms were affected by alcohol consumption. He opined that

Martel’s anxiety did not meet listing 12.06 and that Martel

exhibited mild limitations in activities of daily living,

moderate limitations in both social functioning and maintaining 16 concentration, persistence, and pace, and no extended episodes

of decompensation. When asked by Martel’s attorney whether

Martel “should avoid work with strangers,” D r . Golub responded

that Martel should avoid working “with close contact with

strangers.” T r . at 7 1 .

c. Vocational Expert Testimony

The VE identified Martel’s past relevant work as a general

laborer in a machine shop. Noting that the Dictionary of

Occupational Titles (“DOT”) classifies the job as heavy and

unskilled, the VE classified it at a medium exertional level

based on his own experience placing people in the job and

observing their performance. Identifying Martel’s other past

relevant work as “machine operator 2,” the VE testified that the

job is defined as the lowest level of semi-skilled work,

requiring from thirty days to three months to learn, and is

performed at a medium exertional level. The ALJ posed a

hypothetical question to the V E , asking about an individual with

an RFC permitting medium work with relatively simple

instructions, routine tasks, and no interaction with the general

public. The VE testified that given this RFC, such an

individual could perform Martel’s past relevant work at both

positions. T r . at 7 7 .

17 D. ALJ’s Decision

Applying the five-step sequential process required for

evaluating Social Security claims, see 20 C.F.R.

§ 404.1520(a)(4), the ALJ found at step one that Martel had not

engaged in substantial gainful activity since April 2 3 , 2006,

his alleged onset date of disability.

At step two, the ALJ found that Martel had two severe

impairments: an anxiety disorder and a substance abuse disorder.

In explaining his finding, the ALJ noted Martel’s history of

panic attacks with depression since childhood and longstanding

alcohol abuse. T r . at 1 2 . Acknowledging Martel’s occasional

claims to have ceased drinking, the ALJ noted the considerable

evidence documenting Martel’s continued alcohol abuse.

The ALJ also acknowledged Martel’s diagnosis of hepatitis,

but declined to find it a severe impairment. In arriving at

this finding, the ALJ noted Martel’s own statement that

hepatitis had never interfered with his job functioning, that he

could not even recall his last recurrence of symptoms, and that

he continued to drink alcohol. T r . at 1 2 , 342. The ALJ also

highlighted Martel’s conflicting evidence as to whether he ever

sought treatment and emphasized that the medical evidence did

not show any functional limitations to Martel’s ability to do

work-related activities. 18 At step three, the ALJ found that none of Martel’s

impairments met or medically equaled the listings. Rather, the

ALJ found only moderate restrictions concerning activities of

daily living, though he did find that Martel frequently

neglected to shave, bathe, and dress. The ALJ also noted

Martel’s conflicting testimony and varied descriptions of his

daily activities.

The ALJ assessed Martel’s social functioning as moderately

limited, noting D r . Newcomb’s observations that Martel was

withdrawn, avoided others, and rarely left the house, and that

Dr. Gustavson found Martel unable to interact appropriately or

effectively communicate with unfamiliar people. The ALJ also

noted Martel’s testimony that he only left his house to buy more

alcohol. He then found moderate limitations with Martel’s

concentration, persistence, and pace, noting that despite

visible discomfort he was able to participate in a sixty-minute

consultative examination without complaints. The ALJ found no

evidence of any extended episodes of decompensation.

The ALJ next found that Martel had an RFC to perform a full

range of work at all exertional levels, with a nonexertional

limitation of “simple, unskilled work with no interaction with

the general public.” In making this finding, the ALJ stated

that he considered all symptoms and opinion evidence and 19 assessed its consistency with objective medical evidence, making

credibility findings whenever a symptom was unsubstantiated by

the objective medical evidence. T r . at 12-13.

Next the ALJ found that medical evidence did not support

the severity of Martel’s alleged impairments. Acknowledging

that the record reflected a history of Martel’s avoidance of

crowds and social situations, he found that it did not indicate

any further restrictions beyond his stated RFC. Martel’s mental

status examinations were consistently within normal limits and

he had sought employment throughout the relevant time period,

thereby demonstrating focus, concentration, and that he

considered himself capable of sustaining employment. The ALJ

observed that in January 2007, Martel indicated that an

inability to drive caused his unemployment, with no mentioning

of anxiety limiting his job search. Martel, the ALJ noted,

could have reinstated his license, but chose not to do s o .

The ALJ noted that during a March 2011 medical examination

Martel denied difficulty with concentration and demonstrated a

normal mood and affect and normal attention span and

concentration. He also described Martel’s presentation at D r .

Gustavson’s consultative examination and reported activities of

daily living as consistent with the RFC limitations.

Turning to D r . Newcomb’s evaluation, the ALJ found 20 inconsistencies in Martel’s testimony. First, the ALJ noted

Martel’s testimony – credited by D r . Newcomb – that he had been

sober since 2007 as directly inconsistent with the bulk of the

evidence. The ALJ noted other seeming inconsistencies within

Martel’s testimony to D r . Newcomb that contradicted both his

function report and conversation with D r . Gustavson.

The ALJ noted that Martel did not allege that his condition

had worsened over time, and that during his prior principle

employment he had no history of reprimands and was able to

follow directions, communicate with supervisors, and maintain

attendance. The ALJ highlighted Martel’s daily activities and

found that he lost his last job after losing his driver’s

license, “which shows that he retains the ability to engage to

some extent with coworkers and supervisors.” T r . at 1 6 . “More

importantly,” the ALJ stressed that Martel’s seeking work as

part of his daily routine denoted confidence that he could, in

fact, hold a job. Finally, the ALJ found Martel’s testimony

undermined by inconsistencies regarding alcohol use.

The ALJ next assessed the medical evidence and gave reasons

for the weight allocated to each opinion. He gave “significant

weight” to D r . Golub’s medical expert opinion, reasoning that

Dr. Golub supported his opinion with medical evidence, reviewed

the record in its entirety, and listened to and evaluated 21 Martel’s testimony. The ALJ noted that D r . Golub’s findings

were supported by both D r . Gustavson’s evaluation and Martel’s

self-reported activities of daily living. He stated that D r .

Golub referenced Martel’s social anxiety and opined that Martel

should “avoid work involving close contact with others.”

The ALJ gave “great weight” to D r . Gustavson’s opinion,

noting that she evaluated Martel over the course of a sixty-

minute interview and that her conclusions were consistent with

Martel’s reporting of his daily activities in his own function

report and other record evidence. The ALJ gave “moderate

weight” to the state agency consultant, reasoning that D r .

Martin’s findings were consistent with the record evidence but

based on an incomplete record.

The ALJ gave “limited weight” to D r . Newcomb’s report as

“neither consistent with the record or his own evaluation

notes.” T r . at 1 7 . Although D r . Newcomb’s report includes a

medical history, the ALJ observed that D r . Newcomb did not

describe which, if any, medical records he reviewed in

completing i t . The ALJ also found that D r . Newcomb relied on

Martel’s “not fully credible” subjective reports concerning his

alcohol use. Further, D r . Newcomb’s report of activities of

daily living were deemed inconsistent with those reported in

Martel’s own function report. 22 The ALJ also gave limited weight to Clukay’s opinion as

treating therapist. In particular, the ALJ dismissed Clukay’s

findings concerning Martel’s alleged inability to sustain a

normal workday and workweek as conclusory and unsupported by her

own treatment notes, which did not document missed appointments

or chronic tardiness. T r . at 1 7 . In arriving at his decision,

the ALJ also noted that Clukay was a non-acceptable medical

source.

At step four, the ALJ found Martel capable of performing

past relevant work as a “machine operator 2” and “general

laborer.” The ALJ first noted Martel’s past relevant work as a

general laborer, finding that the position required a heavy

exertional level as defined in the DOT, but medium as performed

by Martel. The ALJ noted that “based upon his experience and

placement of people in this position, [the VE] believes that

this work is generally performed at the medium exertional

level.” T r . at 1 8 . He further added that Martel performed the

job at the medium exertional level and that to the extent that

the VE’s testimony was inconsistent with the DOT, the VE based

it on his own professional experience.

The ALJ acknowledged the VE’s testimony that the machine

operator 2 position was “the lowest level of semi-skilled work.”

He then stated that “[i]n comparing the claimant’s residual 23 functional capacity with the physical and mental demands of this

work, the undersigned finds that the claimant is able to perform

it as actually performed.” Id. Due to Martel’s ability to

perform past relevant work, the ALJ found Martel “not disabled”

under the Social Security Act.

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited 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 6 5 2 , 655 (1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as

long as they are supported by substantial evidence. Id.

Substantial evidence to support factual findings 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 2 1 8 , 222 (1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are 24 conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence in the

record. Irlanda Ortiz, 955 F.2d at 769. It is the role of the

ALJ, not the court, to resolve conflicts in the evidence. Id.

To determine whether an applicant is disabled, the ALJ

follows a five-step sequential analysis. 20 C.F.R. §

404.1520(a)(4). In the context of a claim for social security

benefits, disability is defined as “the inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment” expected to result

in death or to last for a continuous period of not less than

twelve months. 20 C.F.R. § 404.1505(a). The applicant bears

the burden, through the first four steps, of proving that his

impairments exist and preclude him from working. Freeman v .

Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

III. ANALYSIS

Martel presents several arguments in support of his 25 challenge to the ALJ’s decision. He argues that the ALJ’s RFC

is not supported by substantial evidence because the ALJ: (1)

failed to make a severity determination for Martel’s depressive

disorder, and thus did not factor its limiting effects into the

RFC; (2) failed to properly weigh D r . Newcomb’s and Clukay’s

assessments; (3) impermissibly found no severe impairment for

hepatitis at step two of the sequential process; and (4) did not

adequately account for the limiting effects of Martel’s mental

impairments in creating the RFC.

Martel also presents several arguments involving the ALJ’s

findings concerning Martel’s ability to do past relevant work.

First, Martel argues that the ALJ’s flawed hypothetical

questions to the VE did not accurately reflect Martel’s RFC.

Second, Martel argues that the VE’s testimony concerning

Martel’s past relevant work is impermissibly contradicted by

information contained in the DOT, and that the ALJ’s failure to

resolve any such inconsistency constitutes serious error. I

address each argument in turn.

A. Depressive Disorder and Weight of Medical Opinions

Martel first argues that the ALJ committed serious error at

step two by failing to make a severity determination for his

alleged depressive disorder. He acknowledges that such errors

of omission are deemed harmless if the ALJ found at least one 26 severe impairment, proceeded through the sequential analysis,

and properly evaluated any impairments deemed non-severe when

assessing the claimant’s RFC. See Hines v . Astrue, N o . 11-cv-

184-PB, 2012 WL 1394396, at *12-13 (D.N.H. Mar. 2 6 , 2012). His

argument, then, does not focus on step two, but rather on an

allegedly flawed RFC’s failure to adequately capture his

depressive disorder and its related functional limitations. To

support his argument, Martel cites his diagnoses of major

depression or related disorders by “numerous treating and

examining sources.” Doc. N o . 8 . Martel specifically argues

that the RFC fails to account for D r . Newcomb’s and treating

therapist Clukay’s opinions and evidence.10

The Commissioner correctly notes that mere diagnosis of an

impairment says nothing about its severity and is insufficient

to establish disability. Doc. N o . 10-1. Such findings are

10 Martel also cites several additional sources, including nurse practitioner S t . George’s notes from his initial visit. T r . at 402-05. S t . George’s notes relied upon Martel’s self-reporting and earlier medical records and did not contain S t . George’s own diagnosis. He cites a 2001 “new patient” visit to Ardell Currier, another nurse practitioner. Currier noted a “longstanding history of panic attacks and depression since childhood,” and described Martel as an “obviously anxious gentleman.” Currier diagnosed anxiety disorder, “rul[ing] out underlying depressive syndrome.” T r . at 417. The third citation, to D r . Bannister, was from 2002 and concerned a “follow-up” visit for hepatitis C , only briefly mentioning Martel’s treatment for anxiety and depression. T r . at 420. None of these citations actually involved a diagnosis for depression. 27 dispositive, reserved to the Commissioner and thus warrant “[no]

special significance.” 20 C.F.R. § 404.1527(d). The ALJ is

clearly required to evaluate each of these opinions as part of

“all of the relevant evidence.” See Alcantara v . Astrue, 257 F.

App’x 333, 335 (1st Cir. 2007) (citing 20 C.F.R. § 416.920(a),

(c)). An ALJ cannot simply ignore the body of evidence opposed

to his view. Dunn v . Apfel, N o . CIV. 98-591-B, 1999 WL 1327399,

at *8 (D.N.H. Dec. 1 0 , 1999). There is no error, however, where

the ALJ clearly considered a source’s opinion and, after

evaluating the record, including other acceptable medical

sources supporting the opposite conclusion, he or she decided to

discount the source’s opinion. See Russell v . Barnhart, 2004

DNH 009, 24-25. The question, then, amounts to whether

substantial evidence supports the relative weight given to each

medical opinion.

Generally, an ALJ should give the greatest weight to the

opinion of a claimant’s treating source, less weight to an

examining source, and the least weight to a non-examining

source. See 20 C.F.R. § 404.1527(c). For all medical sources,

the ALJ must assess certain factors listed in the regulations

and provide “good reasons” for the weight given to any treating

28 source opinion deemed not controlling.11 Sibley ex rel. Sibley

v . Astrue, 2013 DNH 0 2 2 , 16 & n.5 (citing Polanco-Quinones v .

Astrue, 477 F. App’x 745, 746 (1st Cir. 2012)). Opinions from

nurse practitioners such as Clukay are to be assessed as “other

sources,” and cannot be viewed as acceptable medical sources or

treating sources. 20 C.F.R. § 404.1513(a)(1-2), ( d ) ; SSR 06-3P,

2006 WL 2329939, at *2 (Aug. 9, 2006). Moreover, “the fact that

a medical opinion is from an ‘acceptable medical source’ is a

factor that may justify giving that opinion greater weight than

an opinion from a medical source who is not an ‘acceptable

medical source.’” Hines v . Astrue, N o . 11-cv-262, 2012 WL

2752192, at *10 (D.N.H. Jul. 9, 2012).

In arriving at his RFC finding, the ALJ permissibly gave

limited weight to the opinions of each individual diagnosing

Martel with a depressive disorder. He afforded limited weight

to D r . Newcomb’s evaluation and findings, describing them as

“neither consistent with the evidence of record or his own

evaluation notes.” T r . at 1 7 . D r . Newcomb did not describe

11 The factors are: the length of the treatment relationship and frequency of examination; the nature and extent of the relationship; the extent to which medical signs and laboratory findings, and the physician’s explanation of them, support the opinion; the consistency of the opinion with the record as a whole; whether the treating physician is a specialist in the field; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2-6). 29 which, if any, medical records he reviewed in assessing Martel.

He accepted Martel’s self-reporting of his alcohol consumption,

where a review of the medical record would have quickly revealed

inconsistencies. D r . Newcomb’s diagnosis of “alcohol abuse in

full sustained remission” thus relied upon Martel’s subjective

reports, which the ALJ deemed not fully credible. The ALJ also

found that D r . Newcomb’s description of Martel’s activities of

daily living were inconsistent both with D r . Gustavson’s earlier

description and Martel’s own description in his function report.

The ALJ also afforded limited weight to Clukay’s opinion.

After acknowledging certain aspects of her opinion as consistent

with the record evidence, he noted that “her opinion that

[Martel] is unable to sustain a normal workday and workweek is

not supported by her treatment notes,” and that it was unclear

upon what evidence she even based her opinion. He also noted

that her mental status exams of Martel were predominantly within

normal limits, and found that her opinion was not fully

supported by the record. An ALJ can permissibly give limited

weight to an opinion that is inconsistent with record evidence,

so long as the ALJ give examples of why he or she regards it as

such. See Robar v . Astrue, 2011 DNH 1 1 0 , 17-18. Finally, he

noted that Clukay was a non-acceptable medical source.

In contrast, the ALJ gave “significant weight” to D r . 30 Golub, the medical expert, reasoning that he supported his

opinion by referencing the record medical evidence, was

consistent with evidence reported by Martel and observed by D r .

Gustavson, and was able to both review the record in its

entirety and listen to Martel’s testimony. See Keating v . Sec’y

of Health & Human Servs., 848 F.2d 2 7 1 , 275 n.1 (1st Cir. 1988)

(“It is within the [ALJ’s] domain to give greater weight to the

testimony and reports of [non-examining] medical experts . .

. ” ) ; see also Agrusso v . Astrue, 2013 DNH 006, 25 (citing

Lizotte v . Sec’y of Health & Human Servs., 654 F.2d 1 2 7 , 130

(1st Cir. 1981)) (crediting opinion of a medical expert who

reviewed the record in its entirety and testified at a hearing).

The ALJ gave “great weight” to D r . Gustavson’s consultative

examination, finding that her report was consistent with other

testimony and with her detailed observations of Martel. The ALJ

gave moderate weight to state agency consultant D r . Martin,

reasoning that his testimony was consistent but based upon an

incomplete record.

The ALJ’s assessment of opinions was thorough, reasoned,

and in accordance with 20 C.F.R. § 404.1527(c)(2-6). Martel

argues that the RFC “directly contradicts” D r . Newcomb’s

findings, but misses his mark because the ALJ properly

discredited D r . Newcomb’s opinions. Doc. N o . 8 . The ALJ was 31 entitled to come to a contrary conclusion in light of the

opinions’ inconsistencies with the record evidence of daily

living, their reliance upon the subjective complaints of the

less than fully credible claimant, and their general

inconsistency with the treatment notes. See, e.g. Arroyo v .

Sec’y of Health & Human Servs., 932 F.2d 8 2 , 89 (1st Cir. 1991)

(per curiam)(finding that ALJ is not required to accept the

opinions of treating or examining physicians).

Furthermore, the ALJ properly considered depression when

making his RFC finding. He began his discussion with a blanket

statement that he had “considered all symptoms and the extent to

which these symptoms can reasonably be accepted as consistent

with the objective medical evidence and other evidence.” T r . at

13. More to the point, he explicitly mentioned symptoms of

depression. At step two, he noted Martel’s history of panic

attacks with depression since childhood. T r . at 1 2 . He also

cited Clukay’s treatment notes referring to Martel’s “depression

and anxiety.” T r . at 1 5 , 383. These symptoms were thus

considered, and the diagnoses were permissibly disregarded. The

ALJ found at least one severe impairment, proceeded through the

sequential analysis, and properly evaluated the impairment when

assessing the claimant’s RFC. See Hines, 2012 WL 1394396 at

*12-13. He need not do more. 32 B. Severity Finding for Hepatitis

Martel raises several arguments to contend that substantial

evidence does not support the ALJ’s determination that Martel’s

hepatitis was not a severe impairment. First, he argues that

the ALJ impermissibly relied upon his own lay interpretation of

medical evidence. Second, he notes that the only “medical

evidence” to support the ALJ’s finding impermissibly came from a

“single decision maker.” Third, he argues that any medical

opinions relied upon were based on a materially deficient

record, and that failure to obtain additional evidence from a

medical expert thus requires remand.

Although an ALJ is generally not allowed to judge matters

entrusted to experts or substitute his or her own views for

uncontroverted medical opinions, see Nguyen, 172 F.3d at 3 5 , he

can permissibly render a commonsense judgment if “the claimant

has such minimal physical impairment that [the impairment]

obviously poses no significant exertional restriction.” Baxter

v . Astrue, 2008 DNH 2 2 0 , 1 9 , rep. & rec. adopted, 2008 WL

4452119 (D.N.H. Sept. 2 4 , 2008) (citing Manso-Pizarro v . Sec’y

of Health & Human Servs., 76 F.3d 1 5 , 17-18 (1st Cir. 1996))

(“If that evidence suggests a relatively mild physical

impairment posing, to the layperson’s eye, no significant

exertional restrictions, then we must uphold the ALJ’s finding . 33 . .”). Here, the ALJ discussed Martel’s hepatitis at length and

cited abundant evidence to support his finding that it imposed

no significant exertional restrictions. T r . at 1 2 . Martel told

Dr. Gustavson that his hepatitis never interfered with job

performance, he could not even remember his last occurrence of

symptoms, and he gave conflicting evidence as to whether he had

ever received treatment for hepatitis. The ALJ also noted that

Martel had not offered any medical or other evidence showing

that his hepatitis resulted in any work-related functional

limitations. Here, the ALJ relied upon Martel’s own words, not

his own lay inferences, in arriving at a permissibly commonsense

judgment. See Manso-Pizarro, 76 F.3d at 1 7 .

Martel’s argument about the ALJ’s reliance upon a single

decision maker12 (“SDM”) with no medical credentials is similarly

unavailing. As the Commissioner noted, the ALJ did not even

cite the SDM in arriving at his decision. Doc. N o . 10-1.

Martel argues that the ALJ used the same language as the SDM,

and that “[t]herefore, the court can reasonably infer that the

ALJ, in this case, merely relied on [the SDM] or his own lay

12 Single decision makers are authorized under 20 C.F.R. § 404.906(a) as a “testing modification” in several states, including New Hampshire, for streamlining the disability determination process. Modifications to the Disability Determination Procedures, Disability Claims Process Redesign Prototype, 64 Fed. Reg. 47,218-01, 47,219 (Aug. 3 0 , 1999). 34 opinion . . . ” . Doc. N o . 1 2 . As explained above, the ALJ

extensively discussed his reasons for finding Martel’s hepatitis

to be non-severe, not one of which involved the SDM. It is the

role of the ALJ, and not of this court, to make inferences,

weigh, and resolve conflicts in the evidence. See Rodriguez,

647 F.2d at 222 (citing Richardson v . Perales, 402 U.S. 389, 399

(1971)). The ALJ’s finding that Martel’s hepatitis was not a

severe impairment is a permissibly commonsense judgment

supported by substantial evidence.

C. Limiting Effects of Martel’s Mental Impairments

At step three, the ALJ found that Martel had moderate

limitations in (1) concentration, persistence, or pace; (2)

social functioning; and (3) daily living. In composing Martel’s

RFC, the ALJ limited him to “simple, unskilled work with no

interaction with the general public.” T r . at 1 3 . Martel argues

that the RFC’s limitations do not adequately account for the

ALJ’s step three moderate limitations in either concentration,

persistence or pace, or social functioning.

To bolster this argument, Martel cites several cases that

he alleges find that a limitation to simple unskilled work, with

no interaction with the general public, does not adequately

account for moderate functional limitations. See, e.g.,

Leighton v . Astrue, N o . 07-142-B-W, 2008 WL 2593789, at *4 (D. 35 M e . June 3 0 , 2008) (social functioning), rep. & rec. adopted,

2008 WL 2858817 (D. M e . July 2 2 , 2008); Edwards v . Barnhart, 383

F. Supp. 2d 9 2 0 , 930 (E.D. Mich. 2005) (concentration,

persistence, or pace). Certain decisions by other courts have

relied upon particular facts and evidence to arrive at such a

conclusion; others, including those of this circuit, have not.

See Quintana v . Comm’r of Soc. Sec., 110 F. App’x 1 4 2 , 145 (1st

Cir. 2004) (limit to unskilled work is appropriate when

claimant’s treating psychiatrist rated claimant’s social

functioning as “only ‘moderately limited’” in most respects);

Falcon-Cartagena v . Comm’r of Soc. Sec., 21 F. App’x 1 1 , 14 (1st

Cir. 2001)(claimant’s mental impairments at most marginally

affect available occupations where reports indicate moderate

limitations in areas of functioning). This court has cited

these cases in finding that “medical opinions indicating that a

claimant is at least moderately limited in the relevant areas

can ‘adequately substantiate’ an ALJ’s finding that the claimant

can function in a work environment.” Hines, 2012 WL 2752192, at

*10 (citing Quintana and Falcon-Cartagena).

Martel also argues that the medical opinion evidence

reflects limitations beyond mere interaction with the public,

citing to not only D r . Newcomb’s opinion but also to those of

Dr. Golub and D r . Gustavson. Specifically, Martel mentions D r . 36 Gustavson’s opinion that he “is not able to interact

appropriately and communicate effectively with people he is

unfamiliar with,” T r . at 345, and D r . Golub’s testimony that

Martel “should avoid work with close contact with strangers.”

Tr. at 7 1 . Martel’s attorney specifically asked D r . Golub if he

agreed that the claimant should avoid work with strangers.

After D r . Golub qualified the statement with “close contact,” he

explained that he meant “people that he would have to interact

with and be around, have to cooperate with and be on a work team

. . . ”. T r . at 7 1 .

These statements are open to interpretation, and the ALJ

determined that Martel’s RFC was consistent with the specific

functional abilities mentioned by Drs. Gustavson and Martin.

Tr. at 16-17. The DOT indicated that Martel’s prior work as a

general laborer – which the ALJ found Martel could still perform

at step four – involved a level of interaction with others that

was “not significant.” See Dep’t of Labor, Dictionary of

Occupational Titles, N o . 609.684-014. Martel argues that D r .

Golub’s testimony effectively excludes work with coworkers.

Doc. N o . 8 . The ALJ, however, properly drew reasonable

inferences from the record evidence in arriving at his decision

to limit Martel to no interaction with the public. See Irlanda

Ortiz, 955 F.2d at 769. There was no error. 37 D. The ALJ’s Step-Four Determination

Martel also argues that the ALJ’s findings at step four,

made in reliance upon the VE’s testimony, are not supported by

substantial evidence. Martel first questions whether his

positions as a “general laborer” and “machine operator 2”

constitute “past relevant work.” Alternatively, he submits

several arguments faulting the ALJ’s finding him able to perform

his past relevant work.

According to Martel, neither position qualifies as “past

relevant work” because both were performed more than fifteen

years before the hearing. Doc. N o . 8 ; see 20 C.F.R. 404.1565(a)

(limiting past relevant work to jobs performed in the past

fifteen years). Martel last worked as a machine operator in

1995, and he argues that the “laborer” position discussed by the

ALJ and VE referred to a particular position also ending in

1995.

The record reveals other, more recent laborer positions

that undermine this assertion. On his work history report,

Martel noted employment as a general laborer for various

temporary employment agencies from 1995 through 2006. T r . at

280. Moreover, the regulation Martel cites clearly allows an

ALJ to depart from the fifteen year period. See 20 C.F.R. §

404.1565(a) (“We do not usually consider that work you did 15 38 years or more before [one’s hearing] . . . . The 15-year guide

is intended to insure that remote work experience is not

currently applied.” (emphasis added)); see also Lopez-Diaz v .

Sec. of Health & Human Servs., 673 F.2d 1 3 , 14-15 (1st Cir.

1982) (affirming an ALJ’s reliance on jobs occurring seventeen

years before alleged disability onset date and twenty-two years

before insured status expired). Here, Martel worked as a

laborer within the past fifteen years. Even had he not, it

would be reasonable for the ALJ to conclude that an unskilled

position would be unlikely to have changed significantly over

time. See Khuu v . Apfel, 168 F.3d 499 (9th Cir. 1999)

(unpublished table decision) (finding it reasonable for the

Commissioner to have concluded that the work of a market vendor

was unskilled and “unlikely to have changed significantly over

time”).

Martel also argues that the VE’s testimony is contrary to

the ALJ’s RFC, and that the ALJ erroneously relied upon this

testimony in finding no disability. The ALJ’s RFC explicitly

limited Martel to unskilled work and did not find that he had

any transferable skills. The VE testified, however, that Martel

could do past relevant work as machine operator 2 , which is

semi-skilled work. The ALJ’s acceptance of this testimony,

argues Martel, is facially inconsistent with the RFC. 39 The Commissioner concedes this error, and admits that the

ALJ could not rely on this information as substantial evidence.

Doc. N o . 10-1. The Commissioner nevertheless asserts that the

ALJ permissibly relied upon the VE’s testimony that Martel was

able to perform his past relevant work as a general laborer,

thereby rendering this mistake inconsequential.

Under the Social Security Act, Martel is not disabled if he

is “[]able to do his previous work.” See 42 U.S.C. §

423(d)(2)(A); Dashnaw v . Astrue, 2011 DNH 1 7 8 , at 15-16. The

ALJ, relying upon his RFC, permissibly found that Martel

remained able to work as a general laborer, and thus found no

disability. That he also impermissibly relied upon the VE’s

testimony for the machine operator position is of no

consequence. See Gray v . Heckler, 760 F.2d 369, 371-72 (1st

Cir. 1985) (finding an ALJ’s reliance upon one prior instance of

relevant, applicable past work to be sufficient, even if

claimant can demonstrate an inability to engage in other prior

work).

Martel finally argues that the ALJ erred in crediting the

VE’s testimony to the extent that it contradicted the DOT’s

occupational descriptions. In describing Martel’s past relevant

work, the VE changed the laborer position’s exertional level

from heavy to medium, based on his “experience on [sic] having 40 placed people in the job and observing that job be performed.”

Tr. at 7 4 . The ALJ incorporated a medium exertional level into

his hypothetical questions, id. at 7 6 , and at step four

described the general laborer position as including a medium

exertional level “as performed by [Martel].” T r . at 1 8 . Martel

disagrees with the ALJ’s explanation for changing the laborer

position’s exertional level from heavy to medium, arguing that

the ALJ impermissibly relied upon the VE’s testimony in creating

his hypothetical question, thereby tarnishing his later reliance

upon the VE at step four.

This argument is unavailing, as Martel’s physical

exertional levels were not at issue. After examining each of

Martel’s symptoms and impairments, the ALJ found that Martel

“has the residual functional capacity to perform a full range of

work at all exertional levels.” T r . at 1 3 . As discussed above,

this RFC was supported by substantial evidence. Martel was thus

able to perform his past relevant work as general laborer either

at the DOT’s heavy exertional level or at the VE’s suggested

medium level. See 20 C.F.R. §§ 404.1567(d)(“If someone can do

heavy work, we determine that he or she can also do medium . . .

work.”). Any mistake is thus inconsequential, since Martel was

able to work at either a heavy or medium exertional level.

41 IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. N o . 10) and deny Martel’s motion to

reverse (Doc. N o . 8 ) . The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 1 8 , 2013

cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. Robert J. Rabuck, Esq.