UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Nathan Douglas Seguin, Claimant
v. Case No. 15-cv-121-SM Opinion No. 2016 DNH 124
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Nathan Seguin, moves to reverse or vacate the Acting
Commissioner’s decision denying his applications for Disability
Insurance Benefits under Title II of the Social Security Act, 42
U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI, 42 U.S.C. §§ 423, 1381-1383c (the “Act”). The Acting
Commissioner objects and moves for an order affirming her
decision.
For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.
1 Factual Background
I. Procedural History.
In May of 2012, claimant filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”), alleging that he was disabled and had been unable to
work since December 1, 2011. Claimant was 27 years old at the
time. Those applications were denied and claimant requested a
hearing before an Administrative Law Judge (AALJ@).
In October of 2013, claimant, his attorney, and an
impartial vocational expert appeared before an ALJ, who
considered claimant’s applications de novo. Three weeks later,
the ALJ issued his written decision, concluding that claimant
was not disabled, as that term is defined in the Act, at any
time prior to the date of his decision. Claimant then sought
review by the Appeals Council, which denied his request for
review. Accordingly, the ALJ’s denial of claimant=s applications
for benefits became the final decision of the Commissioner,
subject to judicial review. Subsequently, claimant filed a
timely action in this court, asserting that the ALJ=s decision is
not supported by substantial evidence.
2 Claimant then filed a AMotion for Order Reversing Decision
of the Commissioner@ (document no. 8). In response, the Acting
Commissioner filed a AMotion for Order Affirming the Decision of
the Commissioner@ (document no. 11). Those motions are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 12), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. “Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. ' 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. '' 405(g),
1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
3 Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Importantly, it
is something less than a preponderance of the evidence, so 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. 607, 620 (1966). See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
II. The Parties= Respective Burdens.
An individual seeking SSI and/or DIB 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). See also 42 U.S.C. ' 1382c(a)(3). The
Act places a heavy initial burden on the claimant to establish
the existence of a disabling impairment. See Bowen v. Yuckert,
482 U.S. 137, 146-47 (1987); Santiago v. Secretary of Health &
4 Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove, by a preponderance of the
evidence, that his impairment prevents him from performing his
former type of work. See Gray v. Heckler, 760 F.2d 369, 371
(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982). If the claimant demonstrates an inability to
perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
he can perform, in light of his age, education, and prior work
experience. See Vazquez v. Secretary of Health & Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. ''
404.1512(f) and 416.912(f).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience. See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
5 6 (1st Cir. 1982). Ultimately, a claimant is disabled only if
his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. ' 423(d)(2)(A). See also 42 U.S.C. ' 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ=s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
'' 404.1520 and 416.920. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: December 1, 2011. Admin.
6 Rec. at 16. Next, he concluded that claimant suffers from the
following severe impairment: “disc disease of the lumbar spine
(mild).” Id. But, the ALJ determined that claimant’s
impairment did not meet or medically equal one of the
impairments listed in Part 404, Subpart P, Appendix 1. Admin.
Rec. at 17.
Next, the ALJ concluded that claimant retained the residual
functional capacity (ARFC@) to perform the exertional demands of
“medium” work. 1 He noted, however, that claimant cannot perform
jobs that involve standing and walking for more than six hours
during the day, sitting for more than 6 hours each day, or more
than occasional stooping. Admin. Rec. at 17. In light of those
1 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (ASSR@), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184 at *2 (July 2, 1996) (citation omitted).
7 restrictions, the ALJ concluded that claimant was not capable of
performing any past relevant work - most, if not all, of which
was performed at the “heavy” exertional level. Id. at 20-21.
See also Id. at 41 (vocational expert’s testimony about
claimant’s work history).
At the final step of the analysis, the ALJ considered
whether there were any jobs in the national economy that
claimant might perform. Relying upon the testimony of the
vocational expert, the ALJ concluded that, notwithstanding
claimant’s exertional and non-exertional limitations, “there are
jobs that exist in significant numbers in the national economy
that the claimant can perform.” Id. at 21-22. Consequently, the
ALJ concluded that claimant was not “disabled,” as that term is
defined in the Act, through the date of his decision.
Discussion
Claimant challenges the ALJ=s decision on three grounds,
asserting that he erred by: (1) ignoring substantial medical
evidence in concluding that portions of claimant’s testimony
were not entirely credible; (2) failing to properly recognize
8 claimant’s limited ability to read, write, and spell; and (3)
erroneously calculating claimant’s residual functional capacity.
I. Claimant’s Credibility.
Claimant challenges the ALJ’s conclusion that his
complaints of disabling back pain were not entirely credible.
Specifically, claimant asserts that the “Commissioner does not
consider all of the substantial medical evidence in her analysis
and completely disregards, incorrectly interprets and/or
improperly discounts the overwhelming substantial medical
evidence.” Claimant’s memorandum (document no. 8) at 4.
When determining a claimant’s RFC, the ALJ must review the
medical evidence regarding the claimant=s physical limitations as
well as his own description of those physical limitations,
including his subjective complaints of pain. See Manso-Pizarro
v. Secretary of Health & Human Services, 76 F.3d 15, 17 (1st
Cir. 1996). When, as here, the claimant has demonstrated that
he suffers from an impairment that could reasonably be expected
to produce the level of pain he alleges, the ALJ must then
evaluate the intensity, persistence, and limiting effects of the
9 claimant’s symptoms to determine the extent to which those
symptoms limit his ability to do basic work activities.
[W]henever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual=s own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . ..
In recognition of the fact that an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual’s statements.
SSR 96-7p, Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual=s Statements, 1996 WL 374186 (July
2, 1996). Those factors include the claimant’s daily
activities; the location, duration, frequency, and intensity of
the claimant’s pain or other symptoms; factors that precipitate
10 and aggravate the symptoms; the type dosage, effectiveness, and
side effects of any medication the claimant takes (or has taken)
to alleviate pain or other symptoms; and any measures other than
medication that the claimant receives (or has received) for
relief of pain or other symptoms. Id. See also Avery, 797 F.2d
at 23; 20 C.F.R. ' 404.1529(c)(3).
It is, however, the ALJ=s role to assess the credibility of
claimant’s asserted inability to work in light of the medical
record, to weigh the findings and opinions of both “treating
sources” and other doctors who have examined claimant and/or
reviewed his medical records, and to consider the other relevant
factors identified by the regulations and applicable case law.
Part of the ALJ’s credibility determination necessarily involves
an assessment of a claimant’s demeanor, appearance, and general
“believability.” Accordingly, if properly supported, the ALJ’s
credibility determination is entitled to substantial deference
from this court. See, e.g., McNelley v. Colvin, No. 15-1871,
2016 WL 2941714, at *2 (1st Cir. Apr. 28, 2016) (“The
credibility determination by the ALJ, who observed the claimant,
evaluated his demeanor, and considered how that testimony fit in
with the rest of the evidence, is entitled to deference,
11 especially when supported by specific findings.”) (quoting
Frustaglia v. Secretary of Health & Human Services, 829 F.2d
192, 195 (1st Cir. 1987)); Irlanda Ortiz, 955 F.2d at 769
(holding that it is Athe 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@).
Here, in reaching the conclusion that claimant was not
entirely credible when he asserted that he needed to spend
substantial portions of the day in bed, was unable to sleep, and
was disabled by virtue of back pain, the ALJ considered, among
other things, the following. First, the ALJ noted that shortly
before his alleged onset of disability, claimant reported that
he had begun working in construction and was feeling upbeat,
reported that prescribed medications had “greatly improved his
pain,” and stated that he found it possible to work at home with
“only mild interruptions from pain.” Admin. Rec. at 20 (citing
Admin. Rec. at 300). And, one month prior to his alleged onset
date, claimant reported that he was “eating and sleeping well.”
Id. One month after his alleged onset, claimant reported that
he “has found good relief” for his back pain with the use of
12 oxycodone 10mg, three time daily. See, e.g., Id. at 299. The
ALJ also noted that, in April of 2013, claimant reported a
recurrence of back pain, caused by “overuse” of his back while
raking leaves in his yard – an activity inconsistent with his
reported activities of daily living. Id.
In making his credibility determination, the ALJ also
observed that none of claimant’s treating sources described him
as disabled or unable to work. Id. at 20. Moreover, as
discussed more fully below, that ALJ also found not credible
claimant’s assertion that he is unable to read or write, in
light of educational testing records that repeatedly showed that
claimant scored in the low-average realm on reading and
comprehension testing. See, e.g., Admin. Rec. at 533. Finally,
the ALJ noted that, “the medical evidence is replete with
instances of the claimant’s overuse of narcotic medications,
illegal purchase of narcotic medications and use of illegal
drugs such as marijuana and cocaine. This evidence, along with
his purported illiteracy, casts significant doubt about his
credibility.” Id.
13 In light of the foregoing, the court cannot conclude that
the ALJ neglected to consider any of the relevant factors, or
that he erred in making his assessment of claimant=s credibility.
To be sure, there is substantial evidence in the record
supportive of claimant’s assertion that he experiences chronic
back pain. Importantly, however, there is also substantial
evidence in the record to support the ALJ’s conclusion that his
subjective complaints about the disabling nature of that pain
are over-stated.
II. Claimant’s Ability to Read, Write, and Spell.
Next, claimant asserts that the ALJ failed to properly
acknowledge and consider his “marked/severe limitations in the
areas of reading, spelling and writing.” Claimant’s Memorandum
at 9. But, as the Commissioner points out, substantial evidence
in the record supports the ALJ’s conclusion that claimant’s
deficits are not as severe as he suggests. Although claimant
has not undergone any recent testing, the record contains the
results of several academic tests he underwent while in grade
school. Those tests revealed that, from the ages of about five
through fourteen, claimant routinely demonstrated average
general intelligence, see, e.g., Admin. Rec. at 511, and he
14 showed the ability to produce written statements that were
“generally well-organized and contained well-formulated
sentences,” Id. at 498. At age twelve, he possessed “academic
skills that are within the average range in the areas of
Mathematics Reasoning, Reading Comprehension, Listening
Comprehension, Oral Expression and Written Expression. Basic
Reading, Spelling, and Numerical Operations subtest standard
scores [were] below average.” Id. at 499. A year later,
results of claimant’s testing revealed that his scores were
“within the average range in the areas of Mathematics Reasoning,
Listening Comprehension, Oral Expression and Written Expression.
Scores on the Reading Comprehension [were] in the low average
range. Basic Reading, Spelling and Numerical Operations scores
[were] in the low range.” Id. at 502. But, as one of the
psychologists who administered claimant’s testing observed,
although comparisons between claimant’s expected and his actual
test scores showed a significant discrepancy in reading,
spelling, and comprehension, that “pattern of weaknesses is
commonly observed in students with Attention Deficit Disorder,
15 especially those students who, like Nathan, are of at least
average general intelligence.” Id. at 512. 2
Moreover, as the Acting Commissioner notes, claimant
previously worked as a heating and air conditioner
installer/servicer/helper (DOT Code No. 637.644-010) - a job
that has a “language development” rating of two (on a scale of
one to six), a “reasoning development” rating of three (out of
six), and a “specific vocation preparation” level of six (out of
nine). See Admin. Rec. at 42. The ALJ found that he could work
as a merchandise marker (DOT Code No. 209.587-034), which has LD
rating of one (one lower than claimant’s prior job), an RD of
two (one lower than claimant’s prior job), and an SVP of two
(four lower than claimant’s prior job). Claimant has not
explained how his difficulties with reading and writing have
become worse over the intervening years since he worked as a
heating and air conditioner installer/servicer/helper, nor has
he shown that his problems in those realms would render him
2 Parenthetically, the court notes that claimant does not assert that he currently suffers from, or at any time since his alleged onset of disability he has suffered from, attention deficit disorder.
16 incapable of performing the responsibilities of merchandise
handler.
Given the record evidence, as well as the ALJ’s supportable
determination that claimant’s testimony on this issue was less
than entirely credible, the court is constrained to conclude
that there is adequate (i.e., substantial) evidence in the
record to support the ALJ’s conclusion that “claimant’s
assertion that he is unable to read . . . is inconsistent with
educational records.” Id. at 20.
III. Claimant’s Residual Functional Capacity.
Finally, claimant says the ALJ’s RFC determination is not
supported by substantial evidence. As noted above, the ALJ
concluded that claimant retained the residual functional
capacity to perform medium work, except he could stand, walk, or
sit for only six hours during a typical work day, and he was
limited to only occasional stooping. Admin. Rec. at 17.
Claimant asserts that the ALJ did “not afford any meaningful
weight to arguably the best evidence in this case, the objective
MRI testing results, conducted in November 2011, within a month
of the claimant’s alleged onset date.” Claimant’s memorandum at
17 5. According to claimant, that “objective evidence of record
clearly supports [the assertion] that [he] has a disk herniation
at L5-S1.” Id. Contrary to claimant’s suggestion, no one
denies that he has a herniated disc. Indeed, the ALJ
acknowledged that claimant’s MRI testing in November of 2011
revealed “disc herniation at L5-S1.” Id. at 19. But, the ALJ
also noted that approximately six months later, claimant
returned to work building decks. And, the fact that claimant
was able to return to work following his diagnosis illustrates
an important point: medical diagnoses, such as “herniated disc,”
are “medical labels which carry no readily discernible message
about the physical capacities of an individual suffering from
the conditions they denote.” Class Rosario v. Secretary of
Health & Human Services, 1990 WL 151315 at *2 (1st Cir. July 16,
1009). See also McKenzie v. Commissioner, Social Security
Administration, 2000 WL 687680 at *5 (6th Cir. May 19, 2000)
(“[T]he mere diagnosis of an impairment does not render an
individual disabled nor does it reveal anything about the
limitations, if any, it imposes upon an individual.”). As the
United States District Court for the District of Massachusetts
has noted, “[f]or Social Security disability purposes, the issue
is not whether an impairment exists, but whether it is
18 sufficiently severe to prevent work.” Stefanowich v. Colvin,
No. CIV.A. 13-30020-KPN, 2014 WL 357293, at *1 (D. Mass. Jan.
30, 2014) (citations omitted).
Here, the court’s review of the record suggest that while
no one disputes that claimant has a herniated disc and suffers
from back pain, not one of his treating sources has opined that
his condition is disabling. Claimant does not argue otherwise.
And, as noted above, the ALJ supportably concluded that
claimant’s subjective complaints of disabling back pain were not
entirely credible.
But, says claimant, in concluding that he was not disabled
by reason of his back pain, the ALJ impermissibly gave too much
weight to the opinion provided by non-examining, state agency
physician Meghana C. Karande, M.D. After reviewing claimant’s
medical records, Dr. Karande opined that he retained the RFC for
medium work. Admin. Rec. at 52. The ALJ determined that Dr.
Karande’s opinion was consistent with the medical evidence and
afforded her opinion “great weight.” Id. at 20. Claimant
challenges the ALJ’s reliance upon Dr. Karande’s opinion on
grounds that it necessarily failed to take into account
19 subsequent medical testing, as well as an injury he sustained in
September of 2012. That argument falls short, however. As the
Acting Commissioner notes, official agency guidance provides
that medical opinions that pre-date other evidence in the record
may be afforded substantial weight, so long as they are
consistent with subsequently-obtained medical evidence. See SSR
96-6p, Policy Interpretation Ruling Titles II and XVI:
Consideration of Administrative Findings of Fact by State Agency
Medical and Psychological Consultants, 1996 WL 374180 at *2
(July 2, 1996).
According to claimant, the ALJ erred in giving substantial
weight to the opinion of Dr. Karande because she was unaware of
his injury in September of 2012, when he says he fell and
fractured his tailbone. The evidence of record on that point
is, however, conflicting at best. When claimant initially
presented to Huggins Hospital, he was examined by Scott Hobson,
M.D., who reported that claimant “had x-rays of the coccyx,
lumbar spine, cervical spine and right hip. They were all
normal except there is a fractured coccyx with minimal
displacement.” Admin. Rec. at 239. The following day, however,
a radiologist examined claimant’s x-rays and reported: “No
20 fractures or dislocations identified. No significant bony or
soft tissue abnormality is identified. Impression: Negative
exam.” Id. at 380.
But, even assuming that claimant did fracture his coccyx in
September of 2012, he has not shown how that injury, either
alone or in combination with his other impairments, is
sufficient to undermine the ALJ’s reliance on the opinion of Dr.
Karande. Nor does it undermine that ALJ’s conclusions regarding
claimant’s RFC. See, e.g., Id. at 413 (November, 2012,
examination notes of Thomas Brudz, PA, containing no reference
to any fracture of claimant’s coccyx, but noting claimant
“stands without any scoliosis. He ambulates with a nonantalgic
gait and is able to toe and heel walk. There was no tenderness
to any point of his spine, buttock or greater trochanter. He
has full lumbar flexion going towards his ankles with some
tightness in his low back, and he extends about 30 degrees with
some left-sided low back pain. His incision was intact and all
dermatonal patterns of both lower extremity. His reflexes are
2+ and symmetrical at the knees and ankles. Motor testing is
5/5 in both lower extremity. Straight leg raise and crossed
straight leg raise are negative. Hip range of motion was full
21 and pain-free. Faber’s test is negative but did cause some left
groin discomfort. There is no clonus and negative Babinski.
Distal pulses are intact.”).
Conclusion
Judicial review of the ALJ's decision is both limited and
deferential. This court is not empowered to consider claimant's
application de novo, nor may it undertake an independent
assessment of whether he is disabled under the Act.
Consequently, the issue before the court is not whether it
believes claimant is disabled. Rather, the permissible inquiry
is “limited to determining whether the ALJ deployed the proper
legal standards and found facts upon the proper quantum of
evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Provided the ALJ’s findings are properly supported by
substantial evidence - as they are in this case - the court must
sustain those findings even when there may also be substantial
evidence supporting the contrary position. Such is the nature
of judicial review of disability benefit determinations. See,
e.g., Tsarelka v. 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
22 different conclusion, so long as it is supported by substantial
evidence.”); Rodriguez v. Secretary of Health & Human Services,
647 F.2d 218, 222 (1st Cir. 1981) (“We must uphold the
[Commissioner’s] findings in this case if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support his conclusion.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the Acting Commissioner and claimant,
the court concludes that there is substantial evidence in the
record to support the ALJ’s determination that claimant was not
“disabled,” as that term is used in the Act, at any time prior
to the date of the ALJ’s decision (October 24, 2013). The ALJ’s
assessment of claimant’s credibility, as well as his RFC
determination and his conclusions concerning claimant’s alleged
illiteracy, are well-reasoned and adequately supported by
substantial documentary evidence.
For the foregoing reasons, as well as those set forth in
the Acting Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 8) is
denied, and the Acting Commissioner’s motion to affirm her
23 decision (document no. 11) is granted. The Clerk of the Court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
July 21, 2016
cc: Christine W. Casa, Esq. T. David Plourde, Esq.