Montore v . SSA 11-CV-190-SM 8/20/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gregory Montore, Claimant
v. Case N o . 11-cv-190-SM Opinion N o . 2012 DNH 131 Michael J. Astrue, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Gregory Montore, moves to reverse the Commissioner’s decision
denying his application for Social Security Disability Insurance
Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI of the Act.
See 42 U.S.C. §§ 423, 1381, et seq. The Commissioner objects and
moves for an order affirming his decision.
Factual Background
I. Procedural History
On February 6, 2009, claimant filed an application for
social security disability insurance benefits (“DIB benefits”) as
well as Supplemental Security Income benefits (“SSI benefits”),
alleging that he had been unable to work since September 5 , 2007. He asserts eligibility for benefits based on disabilities due to
chronic back pain, a mood disorder, bipolar disorder, and
attention deficit disorder. His application for benefits was
denied and he requested an administrative hearing before an
Administrative Law Judge (“ALJ”).
On December 7 , 2010, claimant, his attorney, and an
impartial vocational expert (“VE”) appeared before an ALJ.
Claimant’s sister testified on his behalf. On December 2 3 , 2010,
the ALJ issued his written decision, concluding that claimant was
not disabled. He found that claimant has the residual functional
capacity to perform medium work, with some restrictions. In a
Notice of Decision dated March 2 2 , 2011, the Decision Review
Board (“DRB”) notified claimant that it had considered additional
evidence and the written submission of claimant’s counsel, and
that it had affirmed the ALJ’s decision. Accordingly, the ALJ’s
decision became the final decision of the Commissioner, subject
to judicial review.
Claimant then filed a timely action in this court, appealing
the denial of DIB benefits. Now pending are claimant’s “Motion
for Order Reversing Decision of the Commissioner” (document n o .
2 9 ) ; the Commissioner’s “Motion for Order Affirming the Decision
of the Commissioner” (document n o . 1 2 ) .
II. Stipulated Facts
Pursuant to Local Rule 9.1(d), the parties submitted a Joint
Statement of Material Facts which, because it is part of the
court record (document n o . 1 3 ) , need not be recounted in this
opinion.
Standard of Review
I. Properly Supported Findings by the ALJ are Entitled to Deference.
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 of the Commissioner are
conclusive if supported by substantial evidence.1 See 42 U.S.C.
1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n., 383 U.S. 6 0 7 , 620 (1966).
3 §§ 405(g); Irlanda Ortiz v . Secretary of Health & Human Services,
955 F.2d 765, 769 (1st Cir. 1991). Moreover, provided the ALJ’s
findings are supported by substantial evidence, the court must
sustain those findings even when there may also be substantial
evidence supporting the contrary position. See Tsarelka v .
Secretary of Health & Human Services, 842 F.2d 529, 535 (1st Cir.
1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if
the record arguably could justify a different conclusion, so long
as it is supported by substantial evidence.”). See also
Rodriguez v . Secretary of Health & Human Services, 647 F.2d 2 1 8 ,
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.”).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
(citing Sitar v . Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982)). It
is “the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769
4 (citation omitted). Accordingly, the court will give deference
to the ALJ’s credibility determinations, particularly when those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services, 829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
Human Services, 803 F.2d 2 4 , 26 (1st Cir. 1986)).
II. The Parties’ Respective Burdens
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). The Act places a heavy initial burden on
claimant to establish the existence of a disabling impairment.
See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146-47 (1987); Santiago v .
Secretary of Health & Human Services, 944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, claimant must prove that his
impairment prevents him from performing his former type of work.
See Gray v . Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v . Secretary of Health & Human Services, 690 F.2d 5 , 7
(1st Cir. 1982)). Nevertheless, claimant is not required to
5 establish a doubt-free claim. The initial burden is satisfied by
the usual civil standard: a “preponderance of the evidence.” See
Paone v . Schweiker, 530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982).
If 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.
See Vazquez v . Secretary of Health & Human Services, 683 F.2d 1 ,
2 (1st Cir. 1982). See also 20 C.F.R. §§ 404.1512(g). If the
Commissioner shows the existence of other jobs that claimant can
perform, then the overall burden to demonstrate disability
remains with claimant. See Hernandez v . Weinberger, 493 F.2d
1120, 1123 (1st Cir. 1974); Benko v . Schweiker, 551 F. Supp. 6 9 8 ,
701 (D.N.H. 1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) claimant’s subjective claims of pain and
disability, as supported by the testimony of claimant or other
witnesses; and (3) claimant’s educational background, age, and
work experience. See, e.g., Avery v . Secretary of Health & Human
Services, 797 F.2d 1 9 , 23 (1st Cir. 1986); Goodermote, 690 F.2d
6 at 6. When determining whether a claimant is disabled, the ALJ
is also required to make the following five inquiries:
(1) whether claimant is engaged in substantial gainful activity;
(2) whether claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents claimant from performing past relevant work; and
(5) whether the impairment prevents claimant from doing any other work.
20 C.F.R. § 404.1520. 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 Commissioner’s motion to affirm his
decision.
7 Discussion
I. Background - The ALJ’s Findings
The ALJ concluded that claimant was not disabled. In
reaching his decision, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§ 404.1520. He first determined that claimant had not been
engaged in substantial gainful employment since his alleged onset
of disability. Next, he concluded that claimant has the severe
impairments of chronic back pain, a mood disorder, and attention
deficit disorder. Administrative Record (“Admin. Rec.”) 4 1 .
Nevertheless, the ALJ determined that those impairments,
regardless of whether they were considered alone or in
combination, did not meet or equal one of the impairments listed
in Part 4 0 4 , Subpart P, Appendix 1 . Id. at 42-3.
Next, the ALJ concluded that claimant retained the residual
functional capacity to perform medium work, except that claimant
is limited to 1-3 step tasks; can make only simple work
decisions; can adapt to only routine changes in the work
environment; requires close supervision; and needs to avoid
directing others. Id. at 4 4 . The ALJ concluded, therefore, that
claimant is unable to perform his past relevant jobs. Id. at 4 6 .
8 Finally, the ALJ considered whether there were any jobs in
the national economy claimant could perform. Relying upon the
testimony of the VE as well as his own review of the medical
record, the ALJ concluded that, notwithstanding claimant’s
limitations, “there were jobs that existed in significant numbers
in the national economy that the claimant can perform,” such as
stuffer, laundry worker, and kitchen helper. Id. at 4 7 .
Consequently, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act. Id. Claimant,
therefore, was deemed ineligible for DIB and SSI benefits. Id.
at 4 8 .
II. Severe Impairment of Bipolar Disorder
At Step 2 of his analysis, the ALJ found that claimant
suffers from the severe impairments of “chronic back pain, a mood
disorder and attention deficit hyperactivity disorder.” Admin.
Rec. 4 1 . Claimant alleges the ALJ committed reversible error at
Step 2 in failing to find a severe impairment of bipolar
disorder. The argument is unsupportable.
For one thing, it is not at all clear that the ALJ failed to
recognize claimant’s bipolar disorder as a severe impairment. In
9 his Step 2 analysis the ALJ credited the opinion of the state
agency reviewer, D r . Salt, that claimant has the severe
impairments of “attention deficit hyperactivity disorder” and an
“affective disorder.” Id. at 4 2 . In colloquial terms, “[a]n
affective disorder” under Listing 12.04 “is a mood disorder.”
Murphy v . Astrue, 2012 WL 1067683, at *2 (D. M e . March 2 9 , 2012).
Importantly, the only “affective disorder” D r . Salt identified
was bipolar disorder. Admin. Rec. at 387. Accordingly, in
relying on D r . Salt’s assessment to reach the conclusion that
claimant suffers from a severe impairment of a “mood disorder,”
the ALJ surely found that claimant suffers from the severe
impairment of bipolar disorder.2
But even if some other explanation were more persuasive, a
failure by the ALJ to find a severe impairment of bipolar
disorder would not, on this record, constitute reversible error.
A Step 2 error is harmless if the ALJ “continued through the
remaining steps and considered all of the claimant's
impairments.” Syms v . Astrue, 2011 WL 4017870, at * 1 (D.N.H.
Sept. 8 , 2011) (DiClerico, J . ) . Here, the ALJ did just that. At
2 Notably, too, the ALJ in his Step 2 analysis expressly acknowledged that claimant had been diagnosed with bipolar disorder.
10 both Step 3 and in his discussion of claimant’s RFC, the ALJ
credited D r . Salt’s opinion - which was based, in part, on her
recognition of claimant’s bipolar disorder — as to the nature of
claimant’s functional limitations flowing from the combination of
his impairments. See Admin. Rec. at 4 3 , 4 5 . The ALJ’s express
reliance on D r . Salt’s opinion, therefore, establishes that the
ALJ considered claimant’s bipolar disorder. C f . Lynch v . Comm.
of Social Sec. Admin., 2012 WL 1085766, at *13 (N.D.W.Va. March
3 0 , 2012) (finding that ALJ did not consider claimant’s obesity
where he relied on the opinion of the state agency physician who,
at the time she completed her report, “was unaware of the
diagnosis of obesity”).
III. The ALJ’s Consideration of D r . Dinan’s Report
In April of 2010, claimant underwent a mental status
examination by psychologist William Dinan, Ph.D. D r . Dinan
opined, among other things, that claimant suffered from
“frequent” limitations in concentration, persistence, and pace,
and that he had experienced “repeated” limitations in “Stress
Reduction-Work related (deterioration and decompensation).”
Admin. Rec. 442. He diagnosed claimant with “Bipolar I Disorder,
Most Recent Episode Manic, Severe with Psychotic Features; ADHD;
and Borderline Personality Features.” Id. at 443. He further
11 opined that, even following treatment, claimant might not be able
to return to work for one to two years. Id.
Claimant argues that the ALJ erred in his assessment of D r .
Dinan’s report by (1) giving “limited weight” to D r . Dinan’s
opinion based on a factual misapprehension, and (2) failing “to
provide any reasons whatsoever for rejecting” D r . Dinan’s
findings that suggest that claimant’s bipolar disorder “meets or
at least equals the requirements of Listing 12.04.” Doc. N o . 9,
pg. 2 .
A. ALJ’s Reason for Rejecting D r . Dinan’s Report is Supportable on the Record
In affording D r . Dinan’s opinion “only limited weight,” the
ALJ explained that he “considered the opinion” but found it not
entirely credible for reasons “similar” to those he gave in
rejecting the opinions of D r . Batt and D r . Stern.3 Admin. Rec.
46. The ALJ found D r . Batt’s and D r . Stern’s opinions not
entirely credible because they were “based primarily on the
claimant’s self-report.” Id. at 45-46.
3 Although the ALJ did not discuss D r . Dinan’s report at Step 3 , he did address it when he assessed claimant’s residual functional capacity.
12 In support of his argument that his self-reports were not
the primary basis for D r . Dinan’s report, claimant correctly
points out that D r . Dinan made numerous findings based on his own
observations, such as those regarding claimant’s appearance,
behavior, characteristics of speech, affect, and content of
thought. Admin. Rec. 441. But there is substantial evidence to
support the ALJ’s conclusion that D r . Dinan’s further findings
regarding claimant’s ability to function “in terms of”
concentration, persistence, and pace and “stress reaction”
(deterioration and decompensation), id. at 4 4 2 , were heavily
influenced by claimant’s self-reports. For example, in opining
that claimant had “frequent” functional loss in concentration,
persistence, and pace, D r . Dinan provided the following
explanation:
At home—chaotic but independent; at work—recently seasonal bartender 4 mo until 03/10—20 hrs/wk; tasks—adequate with familiar, basic jobs; attendance—erratic; frequent tardiness.
Admin. Rec. 442.
Similarly, in explaining why he checked the box “frequent”
under the category for deterioration and decompensation, D r .
Dinan wrote:
13 Increased mood variation under stress; cigarettes—1 pk/day; alcohol—rarely, some past intermittent problems; illegal drugs—none; no past problems RX—no past problems; arrested 2x (’04, ’05) dwi, domestic; jail 1x (’05) 1 mo.; no prison; no military.
Id.
In comparison, D r . Salt, whose opinion the ALJ accorded
“great weight,” conducted a review of claimant’s medical records,
taking into account claimant’s longitudinal mental health
history. Based on that review, she opined that claimant suffered
only “moderate” limitation in concentration, persistence, and
pace, and had experienced no periods of decompensation. Id. at
394. She noted, among other things, that claimant’s treating
psychiatrist, D r . Batt, had reported “a decrease in
distractibility and increase in attention span,” and that
claimant “has had no inpatient hospitalizations” for the period
reviewed. Id. at 396.
Accordingly, although one can presume that D r . Dinan’s
findings were based not only on claimant’s self-reports, but also
on D r . Dinan’s own observations, there is substantial evidence to
support the ALJ’s conclusion that D r . Dinan’s report is entitled
14 to “only limited weight” because it relies too heavily on the
former.4
B. The ALJ Did Not Improperly Overlook D r . Dinan’s Specific Findings Relating to Listing 12.04
Claimant contends that D r . Dinan’s findings support a
conclusion that his mental impairment meets Listing 12.04. To
meet Listing 12.04, “a claimant must show that he meets the
requirements of Parts A and B or C.” Beaton v . Astrue, 2011 WL
1051060, at *4 (D.N.H March 2 3 , 2011) (citing 20 C.F.R. Part 4 0 4 ,
Subpart P, Appendix 1 ) . Part B requires a claimant to prove that
he has at least two of the four listed criteria: (1) marked
restriction of activities of daily living; or (2) marked
difficulties in maintaining social functioning; or (3) marked
difficulties in maintaining concentration, persistence, or pace;
or (4) repeated episodes of decompensation, each of extended
duration. Id.
Because D r . Dinan found that claimant had “marked”
limitation in concentration, persistence, and pace, and that he
4 The court also rejects claimant’s argument that the ALJ’s explanation for rejecting D r . Dinan’s opinion was too conclusory. His explanation provides claimant, and this court, with sufficient information.
15 had had “frequent” episodes of decompensation, his opinion would
support a finding that claimant met the requirements of Listing
12.04. But rather than credit D r . Dinan’s findings, the ALJ,
instead, accorded “great weight” to D r . Salt’s findings that
claimant suffered only “moderate” limitations in concentration,
persistence, and pace, and had experienced no episodes of
decompensation. Claimant says the ALJ should have addressed D r .
Dinan’s specific findings, and that his failure to do so is
reversible error.
The court disagrees. As noted, the ALJ stated that he was
giving limited weight to the whole of D r . Dinan’s report, and he
gave as a reason the fact that it was disproportionately based on
claimant’s self-reports. Although the ALJ did not also
specifically address D r . Dinan’s findings regarding claimant’s
concentration, persistence, and pace, and history of
decompensation, he was not required to do s o . It is true, as
claimant points out, that an ALJ’s failure to discuss medical
opinions may sometimes warrant remand where the ALJ’s silence
renders meaningful judicial review impossible. See Lord v .
Apfel, 114 F. Supp. 2d 3 , 15-16 (D.N.H. 2000) (Barbadoro, J . ) .
Here, however, the ALJ’s stated reason for giving limited weight
to the entirety of D r . Dinan’s report is sufficient to allow
16 meaningful review - as illustrated by the court’s discussion in
subpart A , above.
Moreover, this case is not like Snow v . Astrue, 2011 WL
4828656 (D.N.H. Oct. 1 2 , 2011), or Dwyer v . Astrue, 2012 WL
2319097 (D.N.H. June 1 9 , 2012). In those cases, the court found
that the ALJ erred where, although crediting a medical provider’s
entire report (Snow) or certain of findings in it (Dwyer), he did
not discuss highly probative findings from the same report that
were inconsistent with his disability determination. In both
cases, remand was warranted because the ALJ’s silence made it
impossible for the court to know whether he “considered and
rejected” the highly probative findings, or whether he “merely
overlooked” them. Dwyer, 2012 WL at * 5 . Here, the ALJ expressly
gave “only limited weight” to the entirety of D r . Dinan’s report,
and he gave a reason for doing s o . Unlike in Snow and Dwyer,
there is no ambiguity in what the ALJ did and why he did i t . The
ALJ here did not, therefore, err in “failing” to address D r .
Dinan’s specific findings relating to the criteria for Listing
12.04.
17 IV. The ALJ’s Hypothetical Accounted for Claimant’s Limitations and the ALJ Did Not Err in Relying on the VE’s Testimony
Claimant says the ALJ’s hypothetical to the VE did not fully
account for his “moderate” limitation in concentration,
persistence, and pace. He further argues that he is entitled to
a remand because the vocational expert’s testimony was
inconsistent with the Dictionary of Occupational Titles (“DOT”)
and the ALJ failed to resolve that inconsistency. Neither
argument is supportable.
A. Hypothetical
The ALJ found that claimant suffered from a “moderate”
degree of limitation in concentration, persistence, and pace. In
his hypothetical to the V E , the ALJ asked the expert to assume
claimant was limited to simple (one to three step) and repetitive
tasks that involved only simple work-related decisions (and work
place changes); that he needed close supervision to ensure he
remained on task; and that he could be involved in only
occasional interaction with coworkers and the public. Admin.
Rec. 97-99. Claimant says these limitations do not reflect a
“moderate” degree of limitation in concentration, persistence,
and pace.
18 Courts have held that it is sometimes error for an ALJ to
limit his hypothetical to simple unskilled routine work,
involving limited interaction with others, where he has found
that claimant has moderate limitations in concentration,
persistence, and pace. See e.g., Winschel v . Commissioner of
Social Security, 631 F.3d 1176, 1180 (11th Cir. 2011) (citing
Stewart v . Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (per
curiam). Nevertheless, “when medical evidence demonstrates that
a claimant can engage in simple, routine tasks or unskilled work
despite limitations in concentration, persistence, and pace,
courts have concluded that limiting the hypothetical to include
only unskilled work sufficiently accounts for such limitations.”
Winschel, 631 F.3d at 1180 (collecting cases).
Here, D r . Salt, who is an acceptable medical source, 20
C.F.R. § 404.1513(a)(1),(2), opined that claimant’s moderate
limitation in concentration, persistence, and pace did not
prevent him from doing simple routine work, even “without special
supervision.” Admin. Rec. 400. The ALJ accepted D r . Salt’s
assessment, except he included a more restrictive limitation to
“close supervision.” Accordingly, because there was medical
evidence that claimant’s moderate limitation in concentration,
persistence, and pace did not rule out the ability to do
19 unskilled, routine work, the ALJ’s hypothetical did not fail to
account for claimant’s limitation.
B. VE’s Testimony
Claimant argues that remand is required because the VE’s
testimony conflicted with the DOT. Specifically, he says that
the VE’s testimony relating to jobs that require “close
supervision” conflicts with the DOT because the DOT does not
address the issue of “close supervision.”
Where there is a conflict between the VE’s testimony and the
DOT, the ALJ must inquire about it and explain how he resolved
the inconsistency. See SSR 00-4p, 2000 WL 1898704, at * 2 . But
“the ALJ need only resolve such conflicts where they are apparent
and have been identified.” Aho v . Commissioner of Social Sec.
Admin., 2011 WL 3511518, at *14 (D. Mass. 2011), citing SSR 00-
4 p , 2000 WL 1898704, at *2 and Donahue v . Barnhart, 279 F.3d 4 4 1 ,
446 (7th Cir. 2002) (SSR 00–4p “requires an explanation only if
the discrepancy was ‘identified’ . . . . ” ) .
Here, there was no reversible error because the conflict was
not “apparent,” and claimant’s counsel did not identify the
purported conflict at the time the VE testified. The implicit
20 conflict “was not deemed sufficient to merit adversarial
development in the administrative hearing”; claimant, therefore,
will “not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert
witness and the voluminous provisions of the DOT, and then
present that conflict as reversible error.” Gibbons v . Barnhart,
85 Fed. Appx. 8 8 , 93 (10th Cir. Dec. 1 8 , 2003) (quotation
omitted).
Conclusion
For the foregoing reasons, claimant's motion to reverse the
decision of the Commissioner (document n o . 9 ) is denied. The
Commissioner's motion to affirm his decision (document n o . 12) is
granted. The Clerk of Court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 2 0 , 2012
cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.