UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Russell John Godin
v. Case No. 16-cv-461-PB Opinion No. 2017 DNH 239 U.S. Social Security Administration, Acting Commissioner
MEMORANDUM AND ORDER
Russell John Godin challenges the denial of his claim for
Social Security disability insurance (“SSDI”) benefits and
supplemental security income (“SSI”). He argues, among other
things, that the administrative law judge (“ALJ”) overlooked
relevant evidence when determining his residual functional
capacity (“RFC”) and improperly relied on an opinion from a
vocational expert that jobs existed in the national economy that
Godin was capable of performing. The Acting Commissioner seeks
an order affirming the decision. For the following reasons, I
affirm.
I. BACKGROUND
A. Facts
Godin was 48 years old at the time of the ALJ’s decision.1
1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. 11. Because that Doc. 11 at 2. He worked in the past as a flagger, a ski lift
attendant, a foreman for a steel construction company, a
delivery driver, and a tow truck operator. Doc. 11 at 2. He
claimed that he had been disabled since 2013.
Godin’s first documented health problem was neck pain,
which he reported in November, 2010. Doc. 11 at 2. He also
reported left and right ankle pain in 2013. Doc. 11 at 2.
Godin also claimed that he suffered from stress and “skin
lesion; myalgia; coronary artery disease (CAD); myocardial
perfusion scan with stress test; abnormal headaches;
hypertension; question of sleep apnea; obstructive
hyperlipidemia; insomnia; depression; major dyspnea; chest
discomfort; risk of sleep apnea; palpitations; fatigue; ankle
pain; morbid obesity; broken CSA; chronic neck pain; history of
acute cervical strain; and cervical radiculopathy.” Doc. 11 at
3.
Despite claiming to have been disabled since September 3,
2013, Doc. 11 at 2, Godin admitted that he had worked as a tow
truck operator from June 2014 through February 2015.
Administrative Transcript (“Tr.”) 51, 57. During this time, he
worked anywhere from 30 hours a week to 60 hours a week. Tr.
51-52.
joint statement is part of the court’s record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 B. Procedural History
Godin filed his claim for both SSDI and SSI on August 2,
2013. The Social Security Administration (“SSA”) denied his
claim on November 7, 2013. Tr. 155. Godin requested a hearing
before an ALJ. Tr. 165. The ALJ conducted a hearing on Godin’s
claim on August 11, 2015. Tr. 14.
The ALJ denied Godin’s claim in a written decision issued
on September 3, 2015. In reaching this decision, the ALJ
applied the five-step analysis required by 20 C.F.R. § 404.1520
(for SSDI claims) and 20 C.F.R. § 416.920 (for SSI claims). At
step one, the ALJ determined that Godin was not currently
engaged in substantial gainful activity. Tr. 17. At step two,
she determined that Godin had the following severe impairments:
“degenerative joint disease of the ankle, obesity, status post
stent insertion, a major depressive disorder, and substance
abuse.” Tr. 17. At step three, she concluded that Godin did
not have any of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1. Tr. 17-19. At step four, she determined that
Godin’s RFC allowed him to do “light work as defined in [§]
404.1567(b) and [§] 416.967(b) except he could[:]
stand or walk for up to six hours in an eight-hour day, but no more than one half hour at a time;
sit for six hours in an eight-hour day, with breaks every two hours;
never climb ladders, ropes, or scaffolds, but occasionally climb ramps or stairs. . . ; 3 occasionally reach overhead;
occasionally stoop, kneel, and operate foot controls, but never crouch or crawl. . . ;
work in an environment that does not include concentrated exposure to extreme vibration, heat, or potential hazards like moving machinery, unprotected heights[,] or uneven terrain. . . ; [and]
perform only routine work tasks day-to-day.” Tr. 19.
In light of this RFC, the ALJ concluded that Godin could not
return to his past relevant work. Tr. 26. Nevertheless, at
step five, after considering the opinion of a vocational expert,
the ALJ determined that Godin could work in a number of other
jobs that existed in the national economy. Tr. 26-27. These
included, “small parts assembler,” “security guard,” “recreation
aide,” “garment sorter,” “cashier,” “car wash attendant,” or
“vending machine attendant.” Tr. 27. The ALJ thus found that
Godin was not disabled and denied his claims for both SSDI and
SSI. Tr. 27-28.
On October 7, 2015, Godin sought review of the ALJ’s
decision before the Appeals Council. Tr. 8-9. The Appeals
Council denied Godin’s request for review on August 22, 2016.
Tr. 3-5.
II. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the administrative record 4 and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner. That review is limited,
however, “to determining whether the [ALJ] used the proper legal
standards and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st
Cir. 2000). I defer to the ALJ’s findings of fact, as long as
those findings are supported by substantial evidence. Id.
Substantial evidence exists “if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
If the ALJ’s factual findings are supported by substantial
evidence, they are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. If,
however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or
judg[ed] matters entrusted to experts,” her findings are not
conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam). The ALJ determines issues of credibility and
draws inferences from evidence in the record. Irlanda Ortiz,
955 F.2d at 769. The ALJ, and not the court, must resolve
conflicts in the evidence. Id.
5 III. ANALYSIS
Godin challenges the ALJ’s decision by claiming that she
ignored or improperly evaluated critical evidence when
determining Godin’s RFC, and improperly relied upon the
vocational expert’s inaccurate opinion testimony when finding
that Godin could perform a significant number of jobs in the
national economy. I address each argument in turn.
A. The ALJ’s Evaluation of the Evidence and RFC Determination
When evaluating a claim for Social Security benefits, the
ALJ must consider all evidence in the record and evaluate any
conflicting evidence. Gonzalez-Garcia v. Sec’y of Health &
Human Servs., 835 F.2d 1, 3 (1st Cir. 1987). The ALJ is free to
accept each piece of evidence completely, partially, or not at
all, provided that she does so on “well-supported grounds.” See
Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). “[I]f an
ALJ has provided well-supported grounds for rejecting testimony
regarding specified limitations, we cannot ignore the ALJ’s
reasoning and reverse the agency merely because the ALJ did not
expressly discredit each witness who described the same
limitations.” Id.
Here, Godin claims that the ALJ erred by ignoring or
improperly weighing: a Work Activity Questionnaire; Dr. Laura
Landerman’s opinion; the July 2, 2013 opinion of his primary
care provider; x-ray results from July 11, 2013; Dr. Rock’s
6 opinions from July 29, 2013 and August 29, 2013; Dr. Trina
Jackson’s November, 2013 opinion that Godin suffers from major
depressive disorder; Godin’s January 21, 2014 visit with AVH
surgical associates; his emergency room visit from March 11,
2014; his cardiovascular stress test from September 2, 2014; and
his Functional Capacity Evaluation form from November 11, 2010.
I am unpersuaded by Godin’s arguments and explain my conclusion
by addressing each piece of evidence in turn.
The ALJ permissibly rejected the Work Activity
Questionnaire because it was completed by Godin’s former
supervisor, who was not “a medical source or other person with
specialization,” and because he continued to work for several
years after the completion of the questionnaire. Tr. 25. See
Valentine v. Comm’r Social Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009) (rejecting the opinion of a former supervisor who
testified on behalf of a claimant out of sympathy); Allen v.
Colvin, No. 15-cv-04162, 2016 WL 1529692, at *16 (S.D. W.Va.
March 18, 2016) (discounting evaluation of claimant’s knee
problem because the evaluation took place two years before
claimant ceased working).
Substantial evidence also supports the weight the ALJ gave
to Dr. Landeman’s opinion. Although the ALJ gave Dr. Landeman’s
opinion “significant weight,” she discounted the portion of the
opinion in which Dr. Landeman said that Godin required a semi-
7 isolated work station and a non-critical supervisor this was
inconsistent with both Godin’s treatment history and Dr.
Jackson’s opinion, which was entitled to more weight because Dr.
Jackson was an examining physician. Tr. 25. An ALJ is entitled
to make such judgments. See Berrios Lopez v. Sec’y of Health &
Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (it is
appropriate to give the opinion of an examining physician more
weight than that of a non-examining physician); Rodriguez Pagan
v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)
(ALJ can discount the opinion of a doctor if it is inconsistent
with other evidence in the record).
The ALJ also noted the symptoms that Godin reported in his
July 2, 2013 visit to his primary care provider, including
“atypical chest pain and heart ‘fluttering’ . . . three to four
times per week,” but concluded that “these symptoms appear to be
quite mild.” Tr. 21, 667. An ALJ ordinarily can discount a
claimant’s allegation that he has a medical issue if the
claimant has not sought treatment for the issue, Irlanda Ortiz,
955 F.2d at 769, continued to work after being diagnosed with
the issue, Allen, 2016 WL 1529692, at * 16, or consulted a
treating source who stated that the issue should not limit the
claimant. Foley v. Astrue, No. 09-10864-RGS, 2010 WL 2507773,
at *8 (D. Mass. June 17, 2010). The ALJ permissibly gave
Godin’s heart troubles little weight because he sought “only
8 erratic and inconsistent treatment” for his heart problems, he
continued to work long after first reporting the heart problems,
and one of his own doctors, Dr. Daniel Van Buren, stated that
his heart problems should not limit his ability to work. Tr.
21.
The ALJ noted that Godin had an x-ray on July 11, 2013,
which revealed “degenerative changes toward the medial side of
the ankle joint.”2 Tr. 20-21, 663. The ALJ, however,
permissibly discounted the severity of Godin’s ankle injury
because he did not seek corrective surgery. See Wilson v.
Colvin, 17 F.Supp.3d 128, 140 (D.N.H. 2010) (ALJ may consider
the absence of treatment for a particular injury as a factor in
determining whether the claimant’s allegations of injury are
credible).
The ALJ considered Dr. Jackson’s November, 2013 report,
which stated that Godin suffered from major depressive disorder
and “presented as poorly groomed, . . . with poor eye contact,
no difficulty answering questions, occasional tearfulness,
irritable mood, blunted affect, low-average intelligence, no
deficits in long-term memory, logical and organized thought
process and content, and normal functioning on the Folstein Mini
Mental Status Examination.” Tr. 23. The ALJ acknowledged that
2 The ALJ also evaluated the evidence of Godin’s ankle issues in Dr. Rock’s reports from July 29, 2013. Tr. 20, 21, 22, 698, 704. 9 Godin suffered from “major depressive disorder” in developing
his RFC determination, but noted that “overall, this objective
clinical presentation is quite mild and fails to support any
limitations beyond those cited in the residual functional
capacity above.” Tr. 23. This determination was permissible
both because Godin himself stated that his mental impairments
were “situational” and because Godin was not receiving treatment
for them. Tr. 21. See Wilson, 17 F.Supp.3d at 140.
While the ALJ never specifically discussed Godin’s January
21, 2014 visit to AVH surgical associates, she did consider the
medical issues he complained about during that visit, which were
mentioned elsewhere in the ALJ’s decision. During the January
21, 2014 visit, Godin stated he had, “trauma/injury, recent
weight loss . . . hearing impairment, tinnitus, neck pain . . .
palpitations, edema, claudication . . . nausea, indigestion,
flatulence . . . urine frequency, nocturia, Polyuria . . .
arthralgia, joint stiffness, swelling of joints, shoulder pain,
arm pain, knee pain, ankle/foot pain, heel pain, muscle cramps,
weakness, recurrent sprains . . . pruritus, insect bite, rash,
tumors/lumps . . . memory loss . . . dizziness . . . clumsiness
. . . paresthesias . . . headache . . . localized weakness . . .
loss of balance . . . heat intolerance . . . anxiety,
depression, nervous breakdown, irritability, [and]
restlessness.” Tr. 714. All of these symptoms (with the
10 exception of “indigestion”) were present during Godin’s July 29,
2013 visit to the doctor, which the ALJ specifically considered
in her opinion. Tr. 20, 21, 22, 704. Under these
circumstances, the ALJ’s failure to specifically discuss the
January 21, 2014 visit was not reversible error. See Grenier v.
Colvin, 2015 DNH 133, *2 (ALJ need not mention every piece of
evidence in the record if it is cumulative of other evidence).
While the ALJ did not specifically mention Godin’s March
11, 2014 visit to emergency room where he complained of chest
pain, she did discuss his September 2, 2014 cardiovascular
stress test, which did not reveal any significant heart damage.
Tr. 21. She also noted that Godin’s cardiologist, Dr. Daniel
Van Buren, determined that Godin “remains asymptomatic and is
active without specific limitations.” Tr. 21. The ALJ also
concluded that Godin’s heart issues were “quite mild,” were
unaccompanied by any chest pain, and were unsupported by the
September, 2014 testimony. Tr. 21-22. Therefore, the ALJ
properly relied on the opinion of Godin’s treating physician
when assessing his heart problems even though the ALJ did not
specifically discuss the emergency room visit. See Douglas v.
Colvin, 2016 DNH 176, *6 (internal citations omitted) (“A
treating source’s opinion is entitled to controlling weight so
long as that opinion is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
11 inconsistent with the other substantial evidence.’”).
The ALJ also properly considered Godin’s November 11, 2010
Functional Capacity Evaluation. Tr. 24. This evaluation “found
that the claimant could perform a fairly wide range of light-
exertional work, but would be unable to stoop, crouch, or engage
in prolonged neck positioning.” Tr. 24. The ALJ discredited
some of the limitations identified in the evaluation because it
was administered “almost three months prior to the amended
alleged onset date” of his disability, Tr. 24, but she
nevertheless incorporated much of the evaluation into his RFC,
including the limitations on stooping and crouching. Tr. 19.
Under these circumstances, the ALJ did not err in failing to
include all of the limitations identified in the evaluations
into Godin’s RFC. See Carmickle v. Comm’r of Social Sec.
Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions
that predate the alleged onset of disability are of limited
relevance.”).
In summary, I am unpersuaded by Godin’s claims that the ALJ
determining Godin’s RFC.
B. Vocational Expert Testimony
Godin also argues that the ALJ erred by relying upon the
vocational expert’s testimony, which he claims was based on a
hypothetical question that did not include all of Godin’s
12 relevant severe impairments. He also faults the expert’s
testimony because he did not specify whether the jobs listed
were full time or part time, he did not state that the jobs
listed were currently available, and his testimony was
inconsistent with the directory of occupational titles (DOT).
1. Hypothetical question
For the ALJ to rely on the opinion of a vocational expert
when determining whether a claimant is disabled, the vocational
expert’s opinion must be based on a hypothetical question that
“accurately portray[s] a claimant’s physical and mental
impairments.” Ealy v. Comm’r of Social Sec., 594 F.3d 504, 516
(6th Cir. 2010); Rose v. Shalala, 34 F.3d 13, 19 (1st Cir.
1994); Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374,
375 (1st Cir. 1982).
Here, although the ALJ’s hypothetical question contained
all of the limitations identified in Godin’s RFC, Godin
nevertheless claims that the hypothetical was incomplete because
it did not include “the limitations from Dr. Landeman’s
assessment,” “the evidence submitted by plaintiff’s previous
employer” (the Work Activity Questionnaire), “the functional
capacity evaluation,” and “the medical records of the
plaintiff’s treating orthopedic doctor, Dr. Rock.” Doc. 6 at
15. This argument is a nonstarter because, as I have explained,
the ALJ had already considered and rejected all of this evidence
13 when determining Godin’s RFC, and therefore she properly
excluded it from the hypothetical question. Tr. 19.
2. Other issues with the vocational expert’s opinion
Godin argues that the vocational expert erred by not
specifying whether the jobs that Godin could still perform were
full time or part time jobs. Godin claims that Social Security
Ruling (SSR) 96-8P requires a vocational expert to specify
whether the jobs the claimant can supposedly perform are full
time or part time. 1996 WL 374184. I disagree. SSR 96-8P
merely says that an “RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental
activities in a work setting . . . [for] 8 hours a day, for 5
days a week. . .” It has nothing to do with the vocational
expert’s opinion, which is based on a hypothetical claimant with
the same relevant severe impairments as the claimant. In fact,
there is no requirement that the vocational expert testify to
only full time jobs, as opposed to part time jobs. Brault v.
Social Sec. Comm’r, 683 F.3d 443, 450 n.6 (2d Cir. 2012) (“We
reject Brault’s argument that the ALJ erred by allowing the
V[ocational] E[expert] to provide employment numbers that must
have included part-time positions . . .”); see Liskaitz v.
Astrue, 559 F. 3d 736, 745 (7th Cir. 2009).
Godin also claims that the vocational expert erred by not
specifying whether the jobs that a hypothetical claimant could
14 perform were currently available. Once again, Godin does not
cite a single case in support of his argument that this error is
sufficient to reverse the ALJ’s decision. In any event, I infer
from the ALJ’s question that the vocational expert was referring
to jobs that were currently available because his testimony
about the jobs that Godin could still perform was given in
response to the question, “[w]hat kind of work, if any, exists
for an individual with these limitations (emphasis added)?” Tr.
at 73.
Finally, Godin claims that the vocational expert’s opinion
should be disregarded because it specified, inconsistently with
the DOT, the number of positions in the national economy for
each job Godin could perform. While the vocational expert’s
opinion listing which jobs the claimant can continue to perform
should be consistent with the DOT, SSR 00-4P, 2000 WL 1898704,
the fact that the expert listed the number of jobs in each
category does not make her opinion inconsistent with the DOT.
See Brault v. Social Sec. Admin. Comm’r, 683 F.3d 443, 446 (2d
Cir. 2012) (“[T]he DOT . . . just defines jobs. It does not
report how many such jobs are available in the economy.”).
Here, the vocational expert properly relied upon the
Selected Characteristics of Occupations (“SCO”) to determine the
number of available jobs. Tr. 86. See Vandemark v. Colvin, No.
13-CV-1467, 2015 WL 1097391, at *12 (N.D. N.Y. March 11, 2015).
15 There is no indication that the vocational expert’s listing of
the number of jobs that Godin could perform was inconsistent
with the DOT. Furthermore, even if the number of jobs listed by
the vocational expert did diverge from the DOT, such a
discrepancy would not require reversal of the ALJ’s decision.
See Brault, 683 F.3d at 450.
IV. CONCLUSION
For the aforementioned reasons, I grant the Acting
Commissioner’s motion to affirm (Doc. No. 9) and deny Godin’s
motion to reverse (Doc. No. 6). The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge November 16, 2017
cc: Christine Woodman Casa, Esq. T. David Plourde, Esq.