UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Edward Mark Sunshine
v. Civil No. 16-cv-446-LM Opinion No. 2018 DNH 017 Nancy A. Berryhill, Acting Commissioner of Social Security1
O R D E R
Edward Mark Sunshine seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying, in part, his
application for social security disability benefits. Sunshine
moves to reverse the Acting Commissioner’s decision that he was
no longer disabled as of October 4, 2013, contending that the
Administrative Law Judge (“ALJ”) erred in his assessment of
Sunshine’s residual functional capacity by improperly evaluating
and weighing the medical evidence and not crediting Sunshine’s
subjective complaints. He also argues that the ALJ erred by
relying on the vocational expert’s response to hypotheticals
that did not match his residual functional capacity assessment.
For the reasons that follow, the decision of the Acting
Commissioner is affirmed.
1 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “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); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520.
The claimant bears the burden through the first four steps of
proving that his impairments preclude his from working.2 Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
step, the Acting Commissioner has the burden of showing that
jobs exist which the claimant can do. Id.
“If the claimant is found disabled at any point in the
process, the ALJ must also determine if his disability continues
2 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and his ability to do past relevant work. 20 C.F.R. § 404.1520(a).
2 through the date of the decision.” Nardolillo v. Astrue, No. CA
09-603 S, 2011 WL 1532147, at *3 (D.R.I. Mar. 29, 2011), report
and recommendation adopted sub nom. Nardilillo v. Astrue, No. CA
09-603 S, 2011 WL 1692162 (D.R.I. Apr. 21, 2011) (internal
quotation marks, citation, and alterations omitted). Relevant
to this case, to terminate benefits after a disability has been
found, substantial evidence must demonstrate that there has been
medical improvement to the point that the claimant is able to
engage in substantial activity. See, e.g., Shirzay v. Astrue,
No. CIV.A. 10-11661-JLT, 2012 WL 397897, at *5 (D. Mass. Jan.
19, 2012), report and recommendation adopted, No. CIV.A. 10-
11661-JLT, 2012 WL 397970 (D. Mass. Feb. 6, 2012). Medical
improvement is defined as “any decrease in the medical severity
of [an] impairment” determined by “changes (improvement) in the
symptoms, signs and/or laboratory findings associated with [the]
impairment.” 20 C.F.R. § 404.1594(b)(1).
BACKGROUND
On August 26, 2013, Edward Sunshine applied for social
security disability benefits, claiming a disability that began
on July 25, 2012, when he was in a motorcycle accident.
Sunshine alleged that he was disabled because of a concussion,
vertigo, left arm fractures, right leg fracture, blurred vision,
loss of memory, confusion, migraine headaches, loss of feeling
3 and coordination in his left hand and a limp. Sunshine was 49
years old at the time of his application. He had previously
worked as a scientist, carpenter, roofer, small business owner,
hot dog vendor, and “house flipper.”
After his accident, Sunshine spent three days in the
hospital recovering from his injuries. He fractured several
bones and underwent surgery. In the months following the
accident, Sunshine sought treatment for vertigo and headaches,
as well as for the various physical injuries he sustained during
the accident. Sunshine continued to seek treatment for his
ailments at least through March 2015.
On May 14, 2015, a hearing before an ALJ was held on
Sunshine’s application for benefits. Sunshine was represented
by an attorney and testified at the hearing.
On June 19, 2015, the ALJ issued a partially favorable
decision. The ALJ found Sunshine had not engaged in substantial
gainful activity from his July 25, 2012 alleged onset date
through the decision date. At Step Two, the ALJ found Sunshine
had the following “severe” impairments after the alleged onset
date, significantly limiting his ability to do basic work-
related activities: “status-post surgical repair of left
olecranon, radial, and 5th metacarpal fractures; status-post
right patellar fracture and surgical repair of right thigh
4 laceration; post-concussion syndrome with vestibulopathy; and
obesity.” At Step Three, the ALJ found Sunshine had no
impairments that met or equaled any of the listed impairments at
20 C.F.R. Part 404, Subpart P, Appendix 1 at any time from the
alleged onset date through the decision date. The ALJ then
found that Sunshine had the following residual functional
capacity (“RFC”) from the July 25, 2012 alleged onset date
through October 3, 2013:
[T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he could never crawl or climb ladders, ropes or scaffolds; could only occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; could only occasionally perform foot control operations; could only occasionally reach and never overhead reach with the non-dominant left upper extremity; could only occasionally engage in handling and fingering with the non-dominant left upper extremity; needed to avoid exposure to extreme cold, moving machinery, and unprotected heights; would have missed more than 3 days of work a month; and would have been off-task up to 20% of the workday.
The ALJ found that, for the period from July 25, 2012 through
October 3, 2013, Sunshine could not do any past relevant work
and that no jobs existed in significant numbers that he could do
with the assessed RFC. The ALJ thus concluded Sunshine was
disabled from July 25, 2012, through October 3, 2013.
The ALJ determined that as of October 4, 2013, medical
improvement related to Sunshine’s ability to work occurred. For
5 the period from October 4, 2013, through the June 19, 2015
decision date, the ALJ assessed the following RFC:
[T]he claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he can never crawl or climb ladders, ropes, or scaffolds; can only occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; can only occasionally perform foot control operations with the right lower extremity; can frequently reach and occasionally overhead reach with the non-dominant left upper extremity; can frequently engage in handling and fingering with the non-dominant left upper extremity; must avoid exposure to extreme cold, moving machinery on the work floor, unprotected heights, and very loud noises; and must avoid exposure to fluorescent lights or be permitted to wear sunglasses in the workplace.
The ALJ then found that Sunshine could do past relevant work as
a small business owner and mail order clerk.3 The ALJ also found
in the alternative that Sunshine could do other jobs existing in
significant numbers in the economy.
Accordingly, the ALJ found Sunshine was not disabled
starting October 4, 2013, through the June 19, 2015 decision
date. The Appeals Council denied Sunshine’s request for review,
making the ALJ’s decision the Acting Commissioner’s final
decision.
3 In the Joint Statement of Material Facts, mail order clerk is not listed as one of Sunshine’s previous jobs. The parties do not make any reference to this inconsistency and it is not relevant to the court’s analysis.
6 DISCUSSION
Sunshine contends that the ALJ erred in his assessment of
Sunshine’s residual functional capacity as of October 4, 2013,
by ignoring and/or improperly discounting his treating
physician’s opinion and by disregarding Sunshine’s own testimony
as to his symptoms. He also argues that the ALJ erred at Step
Five when he found that Sunshine could do jobs existing in
I. RFC Assessment as of October 4, 2013
A claimant’s RFC is “the most [the claimant] can still do
despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). The
ALJ is responsible for determining a claimant’s RFC based on all
relevant evidence in the record. Id.; see Dimambro v. US Soc.
Sec. Admin., Acting Comm’r, No. 16-cv-486-PB, 2018 WL 301090, at
*4 (D.N.H. Jan. 5, 2018). In making that determination, the ALJ
is responsible for resolving any conflicts in the evidence. See
Gonzalez Garcia v. Sec’y of Health & Human Servs., 835 F.2d 1, 3
(1st Cir. 1987). The ALJ is further required to evaluate “every
medical opinion” that a claimant submits, “[r]egardless of its
source.” 20 C.F.R. § 404.1527(c).
7 The ALJ determined that Sunshine’s RFC improved beginning
on October 4, 2013.4 In making that determination, the ALJ gave
consideration to Sunshine’s own testimony and his October 3
function report. For example, the ALJ noted that although
Sunshine testified that he continued to have “significant
problems with his left upper extremity and right lower
extremity,” he had not seen a physician or sought any treatment
for those injuries at all after 2013. The ALJ also noted that
Sunshine’s physical therapy notes from 2013 stated that he had
greater strength and functional capacity than he described at
the hearing and that despite his claims of extreme pain in those
areas, he had not been prescribed any pain medications other
than medical marijuana, which was prescribed for other reasons.
The ALJ further noted that Sunshine was offered another course
of physical therapy for his physical ailments in March 2015, but
he declined.
The ALJ also discussed Sunshine’s testimony concerning his
severe headaches, noting that his “treatment and demonstrated
activities are not consistent” with his complaints. The ALJ
noted that Sunshine had only seen his treating neurologist, Dr.
4 The date of improvement corresponds to a function report Sunshine completed on October 3, 2013 in which the ALJ stated that Sunshine “reported excellent activities of daily living.” Admin. Rec. at 28.
8 Anthony Knox, three times since mid-2013 (in March 2014, July
2014, and March 2015), and that his headaches had been most
recently characterized as simple muscle tension headaches and
not migraines. The ALJ also referenced that Dr. Knox had
prescribed Lopressor as a prophylactic headache medication in
March 2014, but that Sunshine discontinued the medication and
had not sought further treatment, despite it being offered to
him.
In addition to Sunshine’s lack of treatment, the ALJ also
discussed how Sunshine’s “alleged severity of [his] impairments
are also inconsistent with his ability to maintain a wide
variety of activities of daily living, indicative of significant
functional capacity.” Admin. Rec. at 32. For example, the ALJ
cited Sunshine’s October 3, 2013 function report, where Sunshine
stated that he can perform self-care tasks such as dressing,
bathing, grooming, and can adequately manage household chores,
doing laundry, going grocery shopping, driving, and caring for
his dog. Sunshine also testified at the hearing that he hand-
washes his dishes, prepares simple meals, and goes for walks
during the day and sometimes at night to get exercise.
The ALJ further discussed evidence in the record regarding
Sunshine’s work activity. He noted Sunshine’s testimony that he
had purchased a home in late-2013 in order to engage in the
9 business of “flipping” houses, and that Sunshine had reported in
March 2014 that he had made several efforts to return to work as
a painter and doing construction tasks. Although Sunshine
stated that he lacked the “stamina to do the work,” the ALJ
found that Sunshine’s attempts to do such work undercut
Sunshine’s testimony concerning his allegedly severe
limitations. Sunshine also never attempted a lighter job that
did not entail such strenuous activity.
In addition to Sunshine’s own testimony, the ALJ supported
his RFC assessment with medical opinion evidence. The ALJ gave
great weight to the opinion of Dr. Louis Rosenthall, a state
agency physician, who did not examine Sunshine but reviewed his
medical records. Dr. Rosenthall opined that Sunshine could do
light work with certain limitations as of October 2013, and the
ALJ noted that those limitations were consistent with Sunshine’s
continued complaints of dizziness and with Sunshine’s
improvement and lack of recent treatment relating to his
musculoskeletal injuries. The ALJ also discussed the opinion of
Dr. Stefanie Griffin, a state agency psychologist, who examined
Sunshine in December 2013.5 Dr. Griffin’s exam “revealed mostly
average cognitive functioning,” which did not support Sunshine’s
claimed limitations. Dr. Griffin opined that based on her exam,
5 The ALJ inadvertently referred to Dr. Griffin as Dr. Green.
10 Sunshine was capable of adhering to a work schedule and making
basic work-related decisions. In addition, the ALJ discussed
the January 2014 opinion of the state agency psychologist, Dr.
Laura Landerman, who reviewed Sunshine’s records and opined that
he had no medically determinable mental impairments.
Sunshine does not challenge the ALJ’s reliance on the
opinion evidence of Drs. Rosenthall, Griffin, or Landerman. He
claims, however, that the ALJ’s RFC assessment is not supported
by substantial evidence because it ignores the opinion of Dr.
Knox, Sunshine’s treating neurologist, and disregards his own
testimony.
A. Treating Physician’s Opinion
Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that may be brought to the
ALJ’s attention. § 404.1527(c). A treating medical source’s
opinion about the claimant’s impairment will be given
controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” § 404.1527(c)(2). An ALJ must give “good
reasons” for the weight given to a treating source’s medical
11 opinion. § 404.1527(c)(2). “Those reasons must offer a
rationale that could be accepted by a reasonable mind.”
Dimambro, 2018 WL 301090, at *10. If the ALJ satisfies that
standard, the court will uphold the decision to discount a
treating source’s opinion. Id.
Sunshine notes that the ALJ found that Sunshine had the
same severe impairments before and after October 4, 2013, but
that the ALJ concluded that the medical record showed an
increase in Sunshine’s residual functional capacity as of that
date. Sunshine contends that in making this determination, the
ALJ “largely ignored and/or improperly discounted” the medical
records of Sunshine’s treating neurologist, Dr. Knox. He cites
several of Dr. Knox’s medical records, including (1) “Visit
Notes” from Dr. Knox from various points in 2013 and 2014 and
(2) Dr. Knox’s February 25, 2014 “Treating Source Statement –
RFC.” Although Sunshine concedes that the ALJ explained his
reasoning for discounting Dr. Knox’s opinions concerning
Sunshine’s limitations as of October 4, 2013, he contends that
the ALJ’s reasoning is merely “conjecture” and not supported by
the evidence.
In assessing Sunshine’s residual functional capacity, the
ALJ considered Dr. Knox’s descriptions of Sunshine’s “extreme
work-related limitations” in his Treating Source Statement. The
12 ALJ gave Dr. Knox’s opinions little weight for several reasons.
First, the ALJ referred to Sunshine’s own testimony and his 2013
Function Report, discussed above, in which he discussed his
activities of daily living and his attempts to return to work.
The ALJ found that Sunshine’s own descriptions were at odds with
Dr. Knox’s opinion that Sunshine was limited to “less than
sedentary work.” Such a basis supports a finding that the ALJ
had “good reasons” to discount a treating physician’s opinion.
See, e.g., Dimambro at *11 (noting ALJ’s discounting of treating
physician’s opinion because it was inconsistent with evidence of
claimant’s “ongoing levels of activity” was a “good reason” for
assigning it less than controlling weight) (citing cases)).
Second, the ALJ discussed Sunshine’s lack of treatment and
need for prescription pain medication post-October 3, 2013,
which the ALJ determined did not support the significant
limitations set forth in Dr. Knox’s Treating Source Statement.
Such evidence can further be considered “good reasons” for
giving little weight to a treating physician’s activities. See,
e.g., Kane v. Astrue, No. CIV. 08-271-B-W, 2009 WL 902068, at *3
(D. Me. Mar. 31, 2009), report and recommendation adopted, No.
CIV 08-271-B-W, 2009 WL 1080644 (D. Me. Apr. 21, 2009) (noting
that ALJ properly gave treating physician’s opinion that
claimant was severely limited little weight in light of the
13 “claimant’s minimal treatment history [and] his lack of need for
prescription pain medication”).
Finally, the ALJ noted that Dr. Knox’s opinions were at
odds with the three state agency physicians’ opinions. Although
an ALJ is directed generally to give the greatest weight to
medical opinions for treating sources, “the regulations also
presuppose that nontreating, nonexamining sources may override
treating doctor opinions, provided there is support for the
result in the record.” Maynard v. Colvin, No. 14-cv-512-LM,
2015 WL 5838319, at *7 (D.N.H. Oct. 7, 2015) (citing cases); see
also Otero v. Colvin, No. 14-cv-206-PB, 2015 WL 5089810, at *3
(D.N.H. Aug. 27, 2015) (“opinions of treating physicians are not
entitled to greater weight merely because they were treating
physicians.” (internal quotation marks and citation omitted)).
Here, in light of the evidence discussed above, there is
sufficient support in the record to discount Dr. Knox’s opinion
while crediting the non-treating physicians’ opinions. See,
e.g., Otero, 2015 WL 5089810, at *4 (noting ALJ properly gave
treating physician’s opinion little weight in part because non-
examining physician credibly opined that claimant did not have
severe limitations).
Sunshine asserts that the ALJ’s rationale as to why he gave
these opinions little weight after giving Dr. Knox’s pre-October
14 4, 2013 opinions great weight “is erroneous and constitutes
reversible error.” That is simply not the case. As explained
above, while Sunshine labels the ALJ’s reasoning as
“conjecture,” the ALJ addressed Dr. Knox’s conclusions and
reasonably explained why he gave them little weight. A
“reasonable mind” could accept the ALJ’s reasons, and Sunshine
has not shown any error in that analysis.6 See, e.g., Rodriguez
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987) (per curiam) (affirming ALJ’s decision which gave
claimant’s treating physicians’ opinions little weight because
the court “must affirm the Secretary’s resolution, even if the
record arguably could justify a different conclusion, so long as
it is supported by substantial evidence”).
6 Sunshine criticizes the ALJ’s statement that Dr. Knox’s notes “give the impression that he overly sympathizes with or may have even exaggerated the claimant’s complaints with no consideration to their validity.” Admin. Rec. at 33. This comment, while unhelpful, does not undermine the ALJ’s decision to give Dr. Knox’s post-October 3, 2014 opinions little weight given the otherwise thorough explanation. See, e.g., Hill v. Astrue, No. CIV.A. 12-30018-KPN, 2012 WL 5830707, at *4 (D. Mass. Nov. 15, 2012) (noting that ALJ’s speculation that providers sometimes assist patients in applications for disability benefits out of sympathy “was unnecessary and unhelpful to the determination of disability,” but finding ALJ’s decision to give treating physician’s opinion limited weight was appropriate).
15 B. Subjective Complaints
It is the responsibility of the ALJ to determine whether
the claimant’s description of his symptoms is credible. Irlanda
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991). When reviewing an ALJ’s credibility determination,
the court defers to the ALJ because he “observed the claimant,
evaluated his demeanor, and considered how that testimony fit in
with the rest of the evidence.” Frustaglia v. Sec'y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). “It is the
ALJ’s prerogative to resolve conflicting evidence, and [the
court] must affirm such a determination, even if the record
could justify a different conclusion so long as it is supported
by substantial evidence.” Vazquez-Rosario v. Barnhart, 149 F.
App’x 8, 10 (1st Cir. 2005) (internal quotation marks and
citation omitted); see also Rodriguez v. Sec’y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981).
Sunshine argues that the ALJ erred in disregarding his
testimony about his impairments. Contrary to Sunshine’s claim,
however, as discussed above, the ALJ spent significant time
addressing Sunshine’s subjective complaints as of October 4,
2013. Specifically, the ALJ discussed Sunshine’s complaints
regarding his left upper extremity and right lower extremity.
The ALJ determined these complaints were not credible in light
16 of Sunshine’s lack of treatment or medical appointments after
2013, his daily activities, his physical therapy notes that
showed improvement, his lack of pain medication, and the fact
that he declined further physical therapy in 2015. See Section
I, supra. The ALJ also discussed Sunshine’s testimony
concerning his severe headaches, discounting them for similar
reasons. See id. In light of the other evidence in the record,
the ALJ found that Sunshine’s subjective complaints were
“exaggerated,” “generally not credible” and “not persuasive.”
Admin. R. at 29.
The ALJ provided a thorough analysis to support his
conclusion that Sunshine’s statements concerning the severity
and limiting effect of his symptoms as of October 4, 2013 were
not credible. The ALJ’s conclusion falls squarely within his
discretion. See Frustaglia, 829 F.2d at 195 (“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, especially when
supported by specific findings.”); see also Conde v. Colvin, No.
15-cv-246-JD, 2016 WL 299017, at *5 (D.N.H. Jan. 25, 2016).
17 II. Step Five Determination
At Step Five of the continuing disability analysis, the ALJ
has the burden of showing that jobs exist in the economy which
the claimant can do in light of his RFC assessment. A
vocational expert’s opinions about jobs provides substantial
evidence to support the ALJ’s disability determination if the
opinions are based on hypothetical questions that accurately
reflect the claimant’s limitations. See Perez v. Sec’y of
Health & Human Servs., 958 F.2d 445, 447 (1st Cir. 1991); Otero,
2015 WL 5089810, at *6.
Sunshine contends that the ALJ erred at Step Five when he
determined that a significant number of jobs exist in the
national economy that Sunshine can do. He raises several
challenges to the vocational expert’s testimony, upon which the
ALJ relied in his Step Five determination. Specifically,
Sunshine asserts: (1) the ALJ failed to resolve the conflicts
between the vocational expert’s testimony and information in the
Dictionary of Occupational Titles (“DOT”); (2) the vocational
expert’s testimony was “confused, confusing, and
contradictory,”; and (3) the vocational expert’s testimony was
based on hypotheticals that did not take into account all the
medical evidence in the record.
18 A. Conflicts with DOT Information
Sunshine points to a number of purported inconsistencies
between the vocational expert’s testimony and information in the
DOT. He notes that the vocational expert identified a specific
number of jobs available and testified about the extent to which
that number would be reduced with additional limitations in
response to certain hypotheticals posed by the ALJ. He also
faults the vocational expert’s testimony regarding light
sensitivity limitations and the impact of accommodations for
Sunshine to wear sunglasses and hats at work on the number of
available jobs. Sunshine contends that the vocational expert’s
testimony on these issues was inconsistent with the information
contained in the DOT.
Sunshine’s arguments are misplaced. Although the ALJ “must
elicit a reasonable explanation for” an unresolved conflict
between a vocational expert’s testimony and the DOT, SSR 00–4p,
2000 WL 1898704, at *2 (S.S.A. 2000), Sunshine has not shown
that a conflict existed here. The DOT does not provide the
number of jobs available for particular occupations or reduce
the number of available jobs based on certain specific
limitations. See Godin v. U.S. Soc. Sec. Admin., Acting Comm’r,
No. 16-cv-461-PB, 2017 WL 5515845, at *6 (D.N.H. Nov. 16, 2017)
(“The DOT . . . just defines jobs. It does not report how many
19 such jobs are available in the economy.” (internal quotation
marks, citations, and alterations omitted)). Therefore, the
vocational expert’s testimony concerning the impact of certain
limitations on the availability of jobs in the national economy
does not conflict with the DOT. See Szumylo v. Astrue, 815 F.
Supp. 2d 434, 441 (D. Mass. 2011) (“Because the Dictionary of
Occupational Titles does not address the subject of sit/stand
options, it is not apparent that the testimony referencing such
an option conflicts with it.” (internal quotation marks,
citation, and alterations omitted)). For these reasons, the ALJ
did not run afoul of his obligations to resolve conflicts
between a vocational expert’s testimony and the DOT. Id.
B. Confusing Testimony
Sunshine also points to the vocational expert’s testimony
concerning the ALJ’s hypotheticals involving a limitation to
avoid bright or fluorescent lights. He asserts that the
vocational expert’s initial response—that the number of
available jobs would be reduced by 50 percent—was “difficult for
her to come by.” Sunshine also points to the vocational
expert’s subsequent testimony concerning an identical
limitation, noting that the vocational expert testified that it
would reduce available jobs by only 25 percent. He asserts that
20 the two answers are inconsistent and confusing, and the ALJ
erred in relying on the latter testimony.
In response to the ALJ’s hypotheticals, the vocational
expert testified about the number of available jobs in the
economy. During the claimant’s attorney’s examination of the
vocational expert, she asked about the effect of an added
limitation of a worker needed to avoid bright or fluorescent
lights. The vocational expert responded that such a limitation
would reduce the available jobs by 50 percent in both New
Hampshire and nationally.
The ALJ subsequently questioned the vocational expert
regarding the effect of a limitation of a worker needing to wear
sunglasses or a visor in the workplace, essentially repeating
with different language the limitation posed by the claimant’s
attorney.7 The vocational expert clarified her answer,
explaining that the limitation would reduce the available jobs
in New Hampshire and nationally by 25 percent. The vocational
expert apologized for the inconsistency, noting that the
questioning had gotten confusing because of the many
7 In the ALJ’s RFC assessment, he included a limitation that Sunshine must “avoid fluorescent lights or wear sunglasses in the workplace.” Admin Rec. at 35. The parties appear to agree that a limitation that a worker avoid bright or fluorescent lights, and a limitation that a worker need to wear sunglasses or a visor, is the same limitation.
21 hypotheticals. She then repeated her testimony three times that
a limitation of a worker needing to avoid bright or fluorescent
lights, or wear sunglasses or a visor in the workplace, would
reduce the jobs available in New Hampshire and nationally by 25
percent.
Although the vocational expert asked for clarification
about the appropriate hypothetical, her testimony was not
inconsistent. The vocational expert explained that she was
confused because of the multiple hypotheticals proposed to her,
but repeatedly stated that a limitation of needing to avoid
fluorescent lights or wear sunglasses in the workplace would
reduce the number of available jobs by 25 percent. The ALJ’s
reliance on such testimony was not improper.8
C. Improper Hypotheticals
Sunshine contends that the ALJ’s hypotheticals proposed to
the vocational expert failed to take into account all medical
8 Sunshine also criticizes the vocational expert for not specifying whether the available jobs constituted full-time or part-time work. He does not argue, and the record does not reflect, that the jobs identified by the vocational expert were part-time jobs. Regardless, because Sunshine’s counsel failed to raise the issue or object at the hearing, he is precluded from raising that issue here. Jarvis v. Berryhill, No. 16-cv- 494-JL, 2018 WL 446658, at *4 (D.N.H. Jan. 17, 2018).
22 evidence in the record. He asserts that the ALJ excluded a
limitation that the claimant needed to avoid bright and
fluorescent lights, despite medical evidence supporting such a
limitation. He also notes that the vocational expert testified
that no jobs would be available with a limitation that a
claimant could not use his left upper extremity.
The ALJ relied on the vocational expert’s responses to
hypothetical questions that accurately reflected Sunshine’s
limitations as found in the RFC assessment. Although the ALJ
initially proposed a hypothetical that did not contain the
bright lights limitation, he added that limitation to a
subsequent hypothetical, and the vocational expert testified
that it would reduce the available jobs by 25 percent. The ALJ
included that limitation in his RFC, and reduced the available
jobs by 25 percent, citing the vocational expert’s testimony.
See Admin. Rec. at 35.
Although the ALJ did not include a limitation in his
hypotheticals regarding lack of use of a left upper extremity,
that limitation was not included in the ALJ’s RFC assessment.
As discussed, that assessment is supported by substantial
evidence. Therefore, the ALJ committed no error.
23 CONCLUSION
For the foregoing reasons, the claimant’s motion to reverse
and remand (doc. no. 7) is denied. The Acting Commissioner’s
motion to affirm (document no. 10) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
January 29, 2018
cc: All Counsel of Record