Velez v. SSA CV-98-598-M 10/19/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Paul L. Velez, Claimant
v. Civil No. 98-598-M
Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant.
O R D E R
Claimant Paul L. Velez moves pursuant to 42 U.S.C.
§ 405(g) to reverse the Commissioner's decision denying his
application for Social Security Disability Insurance benefits
under Title II of the Social Security Act (the "Act"), 42 U.S.C.
§ 423. The Commissioner moves for an order affirming the
Commissioner's decision. For the reasons that follow, the
decision of the Commissioner is affirmed.
Standard of Review
I .___ Properly Supported Findings by the Administrative _____ Law Judge ("ALU") are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary [now, the "Commissioner"], with or without remanding
the cause for a rehearing." Factual findings of the Commissioner
are conclusive if supported by substantial evidence. See 42
U.S.C. §§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir. 1991).1
Moreover, provided the ALJ's findings are supported by
substantial evidence, the court must sustain those findings even
when there may be substantial evidence supporting the claimant's
position. See Gwathnev v. Chater, 104 F.3d 1043, 1045 (8th Cir.
1997) (The court "must consider both evidence that supports and
evidence that detracts from the [Commissioner's] decision, but
[the court] may not reverse merely because substantial evidence
exists for the opposite decision."). See also Andrews v.
Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (The court "must
uphold the ALJ's decision where the evidence is susceptible to
more than one rational interpretation.").
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts." Irlanda Ortiz, 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
2 to the ALJ's credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health and
Human Services, 803 F.2d 24, 26 (1st Cir. 1986)).
II. The Parties' Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable "to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C.
§ 416(1)(1)(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 Health and Human Services, 944 F.2d 1, 5 (1st Cir.
1991). To satisfy that burden, the claimant must prove that his
impairment prevents him from performing his former type of work.
See Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v. Secretary of Health and Human Services, 690 F.2d 5,
7 (1st Cir. 1982)). Nevertheless, the claimant is not reguired
to establish a doubt-free claim. The initial burden is satisfied
by the usual civil standard: a "preponderance of the evidence."
See Paone v. Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982) .
3 In assessing a disability claim, the Commissioner considers
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 and
Human Services, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote, 690
F.2d at 6. Provided the claimant has shown an inability to
perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that he
can perform. See Vazquez v. Secretary of Health and Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). If the Commissioner
shows the existence of other jobs which the claimant can perform,
then the overall burden remains with the claimant. See Hernandez
v. Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Benko v.
Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982).
When determining whether a claimant is disabled, the ALJ is
reguired to make the following five inguiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or eguals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
4 20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
his :
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .
42 U.S.C. § 423(d) (2) (A) .
With those principles in mind, the court reviews claimant's
motion to reverse and the Commissioner's motion to affirm his
decision.
Background
Pursuant to this court's Local Rule 9.1(d), the parties
have filed a Joint Statement of Material Facts. As this document
is part of the court's record (document no. 7), a detailed
factual background need not be provided in this order.
Accordingly, only a brief account of the case's procedural
history follows.
Claimant filed his application for Title II disability
benefits on June 2, 1994. He alleged that he became unable to
work due to disability on December 15, 1993. He stated his
disabling condition to be chronic hepatitis C, and noted that he
had "had depression all [his] life and at times will guit [work]
and may not [work] again for an extended period of time." (R. at
56. )2 Conditions later reported to the Social Security
Administration included cancer (non-Hodgkins lymphoma in the
2Citations to the record are to the certified transcript of record filed by the Commissioner with the court.
5 spleen, which was successfully treated by surgical removal of the
spleen), anxiety, chronic back pain, and chronic back spasm.
Claimant's application was denied on June 29, 1994, and
again on reconsideration on November 25, 1994. A hearing was
held before an ALJ on April 3, 1995. The ALJ issued a decision
denying claimant's application and the Appeals Council denied
claimant's reguest for review. Claimant then appealed to this
court.
On August 10, 1997, the court reversed and remanded the case
on an assented-to motion to remand by the parties. The Appeals
Council, in turn, remanded the case to the ALJ. A hearing before
the ALJ was held on February 10, 1998, at which claimant, his
wife, and a vocational expert testified. The ALJ again denied
claimant's application by decision dated May 4, 1998.
The ALJ found that claimant was a younger individual (then
44 years old) with a high school education and prior work
experience in skilled, semi-skilled and unskilled occupations
with exertion reguirements ranging from sedentary to heavy work.
He found that claimant met the Act's special earnings
reguirements on his alleged onset date and through December 31,
1996. Although claimant worked beyond his alleged onset date,
the ALJ found that he had not engaged in substantial gainful
activity since July 31, 1994. The ALJ also found that claimant
had impairments that were severe but that did not meet or egual a
listed impairment. At step four of the seguential analysis, the
ALJ determined that claimant had the residual functional capacity
6 ("RFC") to perform light work, with the limitation that claimant
should avoid "work requiring attention to complex tasks or
frequent or close interaction with the supervisors and
coworkers." (R. at 253.) Given that RFC, the ALJ found that
claimant could not perform any of his past relevant work, but
could engage in other work existing in significant numbers in the
national economy. Thus, the ALJ found, at step five of the
sequential analysis, that claimant was not disabled.
Claimant filed exceptions to the ALJ's decision with the
Appeals Council, which found no basis for assuming jurisdiction.
Thus, the ALJ's decision became the final decision of the
Commissioner. Claimant now appeals to this court.
Discussion
Claimant challenges the ALJ's findings regarding his
psychological limitations. In his hypothetical question to the
vocational expert ("VE"), the ALJ asked her to assume that the
claimant's "ability to do a full range of light work was reduced
by poor concentration which means that he should be limited to
simple, non-complex tasks that can be done on a routine . . .
repetitive fashion." (R. at 302.) The VE was also asked to
assume that claimant's remaining occupational base was "further
reduced by the fact that he should have infrequent to limited
contact with supervisors and co-workers." I_ci. The VE testified
that under these assumptions, there existed unskilled jobs in the
national economy that claimant could perform, such as small
7 product assembly, small product packing, light cleaning, and
office help.
The ALJ then altered the hypothetical, adding a number of
limitations, including the inability to "perform even simple
tasks or [carry out] simple instructions." (R. at 304.) Also
added were the assumptions that claimant "would be an unreliable
worker as far as production is concerned. He would have
difficulty following work rules, using judgment, dealing with any
work stresses." On this set of assumptions, the VE opined that
there were no unskilled jobs in the national economy that
claimant could perform.
The ALJ framed his hypothetical guestions to roughly
correspond to the periods before and after 1997, as new evidence
presented after the prior hearing "seem[ed] to show some
additional impairments." (R. at 304.) Claimant challenges this
finding, arguing that the ALJ failed to appreciate how far his
mental health had declined by December 31, 1996. Claimant notes
that on December 1, 1997, Dr. Paul K. Friend opined that claimant
could not understand, remember and follow even simple
instructions. Claimant then argues that that functional
limitation, which the VE testified would foreclose all unskilled
jobs, was already present in December, 1996, and that he was
therefore disabled prior to the expiration of his insured status.
Claimant "ha[s] the burden of establishing by credible
evidence that his mental impairment was of a disabling level of
severity as of" the date his insured status expired. Deblois v. Secretary of Health and Human Services, 686 F.2d 76, 79 (1st Cir.
1982). Claimant cites physicians' office records from November,
1994, to December 1, 1997, which report symptoms of claimant's
depression and anxiety. However, "[i]t is not sufficient for
[claimant] to establish that his mental impairment had its roots
prior to" his date last insured; it must have reached disabling
severity by then. Id.
On May 12, 1994, claimant completed an Activities of Daily
Living form in which he stated that he watched four to six hours
of television a day and, on good days, read for two to four
hours. He said that he could remember what he watched and read.
He also reported having no difficulty following written or verbal
instructions "unless [he] [didn't] want to do them." (R. at 89.)
He did report difficulty concentrating, explaining that he was
distracted by thoughts of his ill health.
In an intake assessment conducted on November 4 and 8, 1994,
Michael H. Potter, M.Ed. CADAC, ICADC, NCAC II, noted that
claimant's "[l]evel of alertness was guestionable," but that his
"thought form seemed to be goal directed and logical." (R. at
213.) In addition, Mr. Potter found no cognitive disruption and
opined that claimant "had ability for abstract thinking." (R. at
214.) Mr. Potter further found that claimant "shows a minimal
degree of insight, but does appear to have the capacity to
understand his difficulties and symptomatology as well as help to
resolve them." Id. On November 15, 1994, Dr. Linda G. Cross conducted a
psychiatric evaluation of claimant. Claimant reported to Dr.
Cross that his concentration was poor and his thinking confused.
(R. at 219.) Dr. Cross described claimant as morbidly depressed,
but also found him to be critical, analytical, and of above
average intelligence. She found his judgment to be " [w]ithin
normal limits of formal testing." (R. at 222.)
On June 22, 1995, claimant was seen at Dartmouth-Hitchcock
Psychiatric Associates for a self-referred emergency evaluation
for depression. The practitioner who completed the initial
assessment noted that claimant experienced "some lapses of
concentration" while describing his history. (R. at 409.) With
regard to claimant's thought processes, the following was
reported: "Many losses of train of thought, otherwise generally
goal-oriented. No evidence of psychosis." (R. at 409.)
Claimant's cognitive function was noted to be "O.K." Id.
Claimant was again seen at Dartmouth-Hitchcock Psychiatric
Associates on August 28, 1997, after his insured status expired.
An initial evaluation was conducted by Dr. Robert Zepf, who found
that claimant had logical thought processes and "no looseness of
association or flight of ideas." (R. at 402.)
On December 1, 1997, Dr. Paul K. Friend, claimant's primary
care provider, completed a medical assessment of claimant's
ability to do work-related activities. Dr. Friend rated
claimant's ability to maintain his personal appearance as fair
and the extent of all other work adjustment capabilities as poor
10 or none. Significantly, he opined that claimant had poor or no
ability to understand, remember and execute even simple work
instructions. Dr. Friend noted, however, that " [m]ost of
[claimant's] symptoms are subjective type symptoms that are very
difficult to evaluate physically and on physical exam." (R. at
375. )
In his May 4, 1998 decision, the ALJ conceded that
claimant's "mental impairments have been underlying conditions
throughout much of the period under review here." (R. at 252.)
The ALJ found that claimant's mental impairments imposed some
functional restrictions on him, but noted that "[s]ome of these
restrictions may have increase[d] since his date last insured."
Id. He concluded:
Prior to December 31, 1996, however, the claimant could not have performed tasks that would reguire that he attend to tasks reguiring attention to complex job tasks. But he could attend to simple non-complex tasks. He was able to read and follow a television story. He was able to care for his children and keep appointments.[3] He could have performed simple tasks. Because of his personality disorder, however, he could not have worked in job situations where he would have to be under close supervision or in close contact with coworkers.
Id.
The ALJ's decision is supported by substantial evidence.
The evidence prior to December 31, 1996, reveals that while
claimant may have experienced some lapses in concentration, he
was an otherwise lucid, logical, intelligent individual. The
3The court notes that claimant's medical records do show a number of canceled and missed appointments, but this does not detract from the ALJ's conclusion.
11 court cannot say that there was not substantial evidence in the
record to support the conclusion that prior to December 31, 1996,
claimant could have remembered, understood and carried out simple
job instructions. Accordingly, claimant's motion is denied and
the Commissioner's decision is affirmed.
Conclusion
For the foregoing reasons, the claimant's motion for order
reversing decision of the Commissioner (document no. 5) is denied
and the Commissioner's motion for order affirming the decision of
the Commissioner (document no. 6) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 19, 1999
cc: Stanley H. Robinson, Esg. David L. Broderick, Esg.