UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Tina Marie Ramsey, Claimant
v. Case No. 18-cv-553-SM Opinion No. 2019 DNH 127
Andrew Saul, 1 Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Tina Marie Ramsey, moves to reverse or vacate the Commissioner’s
decision denying her applications for Disability Insurance
Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI. See 42
U.S.C. §§ 423, 1381-1383c (collectively, the “Act”). The
Commissioner objects and moves for an order affirming his
decision.
For the reasons discussed, claimant’s motion is denied, and
the Commissioner’s motion is granted.
1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. He replaced the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. Factual Background
I. Procedural History.
In September of 2015, claimant filed applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), alleging that she was disabled and had been
unable to work since January 3, 2015. Claimant was 37 years old
at the time and had acquired sufficient quarters of coverage to
remain insured through December of 2019. Claimant’s
applications were denied and she requested a hearing before an
Administrative Law Judge (“ALJ”).
In May of 2017, claimant, her attorney, 2 and an impartial
vocational expert appeared before an ALJ, who considered
claimant’s applications de novo. After obtaining additional,
post-hearing evidence, the ALJ issued her written decision,
concluding that claimant was not disabled, as that term is
defined in the Act, at any time prior to the date of her
decision. Claimant then requested review by the Appeals
Council. That request was denied. Accordingly, the ALJ’s
denial of claimant’s applications for benefits became the final
decision of the Commissioner, subject to judicial review.
2 At the hearing, claimant was represented by Laurie Smith Young, Esq. She is now represented by D. Lance Tillinghast, Esq.
2 Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by
substantial evidence.
Claimant then filed a “Motion for Order Reversing Decision
of the Commissioner” (document no. 7). In response, the
Commissioner filed a “Motion for an Order to Affirm the
Commissioner’s Decision” (document no. 9). Those motions are
pending.
II. Factual Background.
A detailed factual background can be found in claimant’s
statement of facts (document no. 7-2) and the Commissioner’s
statement of facts (document no. 8). 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
3 supported by substantial evidence. See 42 U.S.C. §§ 405(g),
1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
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,
then, 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. See 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)(A).
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
4 Health & 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 her impairment prevents her from
performing her former type of work. See Manso-Pizarro v.
Secretary of Health & Human Services, 76 F.3d 15, 17 (1st Cir.
1996); Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985). If
the claimant demonstrates an inability to perform her previous
work, the burden shifts to the Commissioner to show that there
are other jobs in the national economy that she can perform, in
light of her 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, 404.1560,
416.912, and 416.960.
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 claimant’s testimony or that of
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,
6 (1st Cir. 1982). Ultimately, a claimant is disabled only if
her:
5 physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] 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 Commissioner’s motion to affirm his
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, she first determined that
claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: January 3, 2015. Admin.
Rec. at 15. Next, she concluded that claimant suffers from the
following severe impairments: “arthritis, status post ankle
arthrodesis and hardware removal; degenerative disc disease;
6 left shoulder impingement; obesity; depression; anxiety and
borderline intellectual functioning.” Id. But, the ALJ
determined that claimant’s impairments, whether considered alone
or in combination, did not meet or medically equal any of the
impairments listed in Part 404, Subpart P, Appendix 1. Admin.
Rec. at 15-18. Claimant does not object to any of those
findings.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
“light” work, subject to the following fairly restrictive
limitations:
she can stand up to four hours, walk up to four hours, and sit up to eight hours, in an eight-hour day. She can occasionally reach overhead and in all other directions with the left (non-dominant) upper extremity, and she can occasionally push and pull with the left (non-dominant) upper extremity. The individual can never climb ladders, ropes, or scaffolds, never crawl and occasionally climb ramps and stairs, balance, stoop, kneel and crouch. The individual should never work around unprotected heights or moving machinery. She can frequently operate a motor vehicle in the course of work. She can frequently work in wet or humid environments. She should avoid more than occasional exposure to extreme cold, extreme heat, dusts, odors, fumes and pulmonary irritants. The individual is limited to no more than a loud noise environment. The individual is further limited to simple, routine tasks in two hour blocks over an eight hour day, with no fast or production rate pace work. She can tolerate occasional simple, decision-making, occasional changes in the work setting and occasional interaction with the public.
7 Admin. Rec. at 18-19. In light of those restrictions, the ALJ
concluded that claimant was not capable of performing any past
relevant work. Id. at 24. See also Id. at 69-70 (vocational
expert’s testimony about claimant’s work history as a babysitter
and line cook).
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 24. Consequently, the
ALJ concluded that claimant was not “disabled,” as that term is
defined in the Act, through the date of her decision.
Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that she erred by: (1) failing to properly consider
the opinions of one of claimant’s treating sources when
determining claimant’s RFC; and (2) failing to give appropriate
weight to claimant’s testimony about the disabling symptoms and
limitations caused by her impairments.
8 I. Opinion Evidence.
Claimant’s medical history is fairly lengthy and, at more
than 1,300 pages, the record is substantial. But, the parties
focus almost exclusively on the medical opinions rendered by
four medical professionals:
(1) Treating psychologist Donna Novelli, Ph.D., who examined claimant twice during the relevant period. Admin. Rec. at 1092-97.
(2) Examining psychologist Stefanie L. Griffin, Ph.D., who also examined claimant twice during the relevant period. Id. at 279-84; 792-98.
(3) Non-examining orthopedic surgeon, Elizabeth Nolan, M.D., who reviewed claimant’s medical records and completed a post-hearing “Medical Source Statement of Ability to do Work-Related Activities (Physical).” Id. at 1204-14.
(4) Non-examining state agency physician Laura Landerman, Ph.D. Id. at 84-93.
Physical Impairments. Claimant first alleges that the ALJ
erred in failing to properly account for Dr. Nolan’s observation
that claimant “may need to elevate right leg periodically and
may need special shoe accommodation.” Admin. Rec. at 1209.
Claimant goes on to assert that this “limitation” is likely
related to her arthritis, which she testified prevented her from
driving long distances, standing for anything more than a few
minutes, and walking long distances. See Claimant’s memorandum
(document no. 7-1) at 6.
9 Parenthetically, the court notes that claimant has not
pointed to (nor could the court find) even a single other
reference in the record to claimant’s possible need to elevate
her right leg. And, when asked by the ALJ whether she required
any “special shoes or inserts,” claimant said that she did not.
Rather, she stated that when purchasing shoes, she simply needed
to be mindful of what type of shoe she bought. That is, she had
to make sure they don’t put pressure on the pin that was placed
in her right foot in 2001 to surgically repair a fracture.
Admin. Rec. at 66-67. Approximately five months after the
hearing, in October of 2017, claimant presented to the Wentworth
Douglass Hospital, complaining of “bilateral foot pain.” She
told the treating physician’s assistant that although she did
own orthotic shoes, she did not wear them. Id. at 1294. There
is, then, scant evidence to support the notion that claimant
needs either to elevate her right leg or wear orthopedic shoes.
Beyond the speculative reference to claimant’s potential
need to elevate her leg and/or wear orthopedic shoes, Dr. Nolan
opined that claimant could: perform activities like shopping;
travel without a companion for assistance; ambulate without need
for a walker, cane, or crutches; and walk a block at a
reasonable pace, even on rough surfaces. Admin. Rec. at 1209.
She also opined that claimant can sit for up to 8 hours without
10 interruption, stand for up to 2 hours, and walk for up to 2
hours. Id. at 1205. Consequently, it does not appear that Dr.
Nolan’s suggestion that claimant “may” need to elevate her leg
and/or obtain orthopedic shoes actually imposes any additional
functional limitation(s). See, e.g., Dimambro v. US Soc. Sec.
Admin., 2018 DNH 4, 2018 WL 301090, at *5 (D.N.H. Jan. 5, 2018)
(noting that an ALJ need only “explain the meaning of the
opinion or address it as a limitation” when a medical source
opinion “can reasonably be read to include a specific functional
limitation.”) (citation and internal punctuation omitted).
Moreover, as the Commissioner notes, even if Dr. Nolan’s
observations could be viewed as a specific functional
limitation, and if there were substantial evidence to support
finding such a limitation, claimant has not shown (or even
suggested) that the ALJ’s RFC finding would not accommodate that
limitation. The ALJ’s RFC determination limits claimant to
standing and walking for no more than a total of 4 hours in an
8-hour workday. Consequently, there are 4 additional hours in
the workday that claimant could elevate her leg if necessary.
And, there is no suggestion that claimant’s (potential) need for
a special shoe would preclude her for performing the work-
related functions determined by the ALJ.
11 More broadly, the court notes that while four medical
professionals discussed claimant’s various physical and mental
impairments in detail, only Dr. Nolan completed a “Medical
Source Statement of Ability to do Work-Related Activities” and
offered an opinion as to claimant’s physical limitations. And,
the ALJ sustainably adopted Dr. Nolan’s opinions in determining
claimant’s RFC (with two exceptions: a few non-exertional
limitations, which the ALJ concluded were more restrictive than
Dr. Nolan; and the suggestion that claimant “may” need to
elevate her right leg). The ALJ did not err in calculating
claimant’s RFC. Nor did she err in relying largely upon the
opinions of Dr. Nolan, or in failing to discuss any references
to claimant’s potential need to elevate her leg or wear
orthopedic shoes.
Mental Limitations. Next, claimant asserts that the ALJ
erred by dismissing the opinions offered by Dr. Novelli as
having “no probative value.” Admin. Rec. at 23. But, the ALJ
adequately explained her decision to discount those opinions:
Dr. Novelli opined, after a brief treating relationship with the claimant [i.e., two office visits], that she had “extreme” limitations in her ability to understand, remember or apply information, interact with others and concentrate, persist or maintain pace and “marked” limitation adapting or managing oneself. This checklist-style form appears to have been completed as an accommodation to the
12 claimant and includes only conclusions regarding functional limitations without any rationale for those conclusions.
Admin. Rec. at 23. See also Id. at 1092-97 (“Mental Impairment
Questionnaire” completed by Dr. Novelli). In addition to noting
claimant’s short treatment history with Dr. Novelli, 3 the ALJ
also explained that Dr. Novelli’s opinions were not supported by
objective evidence, nor were they supported by claimant’s
activities of daily living. Id.
On the other hand, the consulting psychologist, Dr. Griffin
(who, like Dr. Novelli, also examined claimant twice), generally
concluded that claimant’s intellectual limitations (e.g., her
slow processing speed) were not particularly significant, and
her psychiatric impairments (e.g., anxiety) were well managed
with medication. So, for example, after evaluating claimant in
November of 2013, Dr. Griffin concluded that: although her
intellect is estimated to be in the “below average,” possibly
“borderline,” range, claimant’s speech was within normal limits
and her thought processes were generally logical and goal-
oriented; claimant maintains a fairly full range of daily
3 The record indicates that claimant met with Dr. Novelli twice. She appears to have cancelled all of her other scheduled sessions with Dr. Novelli. See Admin. Rec. at 1055, 1056, 1057, and 1058.
13 activities, including household cleaning, laundry, and meal
preparation; she also is responsible for her three young
children and maintains the family’s finances; she generally
appears capable of appropriate interactions with others; and her
“psychiatric symptoms appear to be generally well-controlled at
this time and do not appear to adversely impact her capacity to
adhere to a work schedule or to interact appropriately with
supervisors/co-workers.” Admin. Rec. at 282-83.
Approximately two and one-half years later, in June of
2016, Dr. Griffin again examined claimant. She again observed
that claimant suffers from somewhat slowed processing speed, and
scored in the “low average” to “borderline impaired” range on
various verbal and nonverbal intellectual performance tests.
Id. at 794-95. But, Dr. Griffin again noted that claimant
maintains a fairly full range of daily activities:
She reported that she prepares dinner from scratch for the family. She indicated that she keeps up with the laundry and household cleaning because she has “OCD.” She manages her medications without reported difficulty. She also manages the household finances. . . . She drives without difficulty.
Id. at 796. See also Id. at 797 (“Mrs. Ramsey appears
independent in completing daily activities. She presented alone
to the evaluation and completed intake paperwork independently.
14 She manages the household laundry, cleaning and meals without
reported difficulty. She drives and manages her medications and
the household finances.”).
Ultimately, Dr. Griffin concluded that claimant “appears
capable of understanding and remembering basic, but not complex
instructions and information” and “capable of attending to and
completing basic, but not more complex tasks.” Id. And,
finally, Dr. Griffin opined that, “Psychological factors do not
appear to have a significantly adverse impact upon her capacity
to adhere to a regular work schedule, interact appropriately
with others, or follow basic work-related instructions. Because
of intellectual limitations, she is expected to have difficulty
following more complex work-related instructions and making
complex work-related decisions.” Id. at 797-98.
The ALJ’s decision to afford Dr. Griffin’s opinions “great
weight” is amply supported by the record, as well as the reasons
expressed by the ALJ. Id. at 21-22. Similarly, the ALJ
adequately explained her decision to ascribe “no probative
value” to the opinions of Dr. Novelli. Specifically, she noted
claimant’s comparatively short treatment history with Dr.
Novelli, the fact that it appeared that Dr. Novelli completed
the checklist-style form as an accommodation to claimant, and
15 that Dr. Novelli (unlike Dr. Griffin) expressed only
conclusions, without providing supporting rationales or pointing
to supportive evidence.
In the end, the record contained conflicting mental health
opinions from two examining sources - both of whom had examined
claimant twice. The ALJ considered both of those opinions, but
sustainably concluded that Dr. Griffin’s opinions were better
supported by the record and more persuasive. The court can find
no error in the ALJ’s decision to credit the opinion evidence in
that manner, or her explanation for that decision.
II. Claimant’s Testimony and Subjective Symptom Allegations.
Finally, claimant asserts that the ALJ “erroneously
evaluated [her] testimony regarding her symptoms and limitations
in determining her RFC.” Claimant’s memorandum at 9.
Specifically, she claims the ALJ “failed to acknowledge [her]
testimony indicating that she was actually extremely limited in
her daily activities, including her ability to care for her
children, due to her physical and mental limitations.” Id. at
11. The court disagrees.
The ALJ summarized claimant’s testimony about her daily
activities, her lower back and foot pain, her difficulty
16 driving, and her claimed inability to stand from more than six
to eight minutes at a time. See Admin. Rec. at 19, 55. And,
the ALJ found that claimant’s medically determinable impairments
could reasonably be expected to cause claimant’s alleged
symptoms. But, the ALJ concluded that claimant’s statements
about the intensity, persistence, and limiting effects of those
symptoms were “not entirely consistent with the medical evidence
and other evidence in the records.” Id. at 20. The ALJ then
discussed, in detail, the basis for that conclusion. See Admin.
Rec. at 20-23. See also Soc. Sec. Ruling 16-3p, Titles II &
XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P,
2016 WL 1119029 *2 (Mar. 16, 2016) (“[A]n individual’s
statements of symptoms alone are not enough to establish the
existence of a physical or mental impairment or disability.”).
So, contrary to claimant’s suggestion, the ALJ did not
“fail to acknowledge” claimant’s testimony about her alleged
limitations. The ALJ summarized claimant’s testimony, but found
that it was not entirely consistent with other evidence in the
record. In other words, the ALJ properly engaged in “an
evidence-based analysis of the administrative record to
determine whether the nature, intensity, frequency, or severity
of an individual’s symptoms impact his or her ability to work.”
Id., 2016 WL 1119029 *1, n.1. And, contrary to claimant’s
17 implicit suggestion, see claimant’s memorandum at 9-10, the ALJ
did not engage in an impermissible evaluation of claimant’s
overall credibility, her character, or her propensity for
truthfulness. Soc. Sec. Ruling 16-3p, Titles II & XVI:
Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2016 WL
1119029, at *10.
Claimant has not identified any flaw in the ALJ’s
reasoning, nor has she pointed to substantial evidence
undermining the ALJ’s conclusions. Instead, she seems to ask
the court to simply reweigh her testimony and the evidence of
record in a manner more favorable to her. That is not the
court’s role, nor does the court have authority to do so. See,
e.g., Gillen v. Colvin, 2017 DNH 37, 2017 WL 775785, at *6
(D.N.H. Feb. 28, 2017) (“Claimant’s argument is best construed
as invitation to the court to reweigh the evidence before the
ALJ, but that is an invitation the court must decline.”)
(citations omitted).
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 she is disabled under the Act.
18 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
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 Commissioner and the claimant,
the court concludes that there is substantial evidence in the
record to support the ALJ’s determination that claimant was not
19 disabled, as that term is used in the Act, at any time prior to
the date of the ALJ’s decision (January 2, 2018). The ALJ’s
determination of claimant’s RFC, her stated reasons for
crediting some medical opinions while discounting others, and
her analysis of claimant’s subjective allegations of disabling
symptoms are well-reasoned and supported by substantial
evidence.
For the foregoing reasons, as well as those set forth in
the Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 7) is
denied, and the Commissioner’s motion to affirm his decision
(document no. 9) 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
August 9, 2019
cc: D. Lance Tillinghast, Esq. Sarah E. Choi, Esq.