UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Veronica E. Moffitt
v. Civil No. 17-cv-280-JL Opinion No. 2018 DNH 177 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Veronica Moffitt moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act, 42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, the decision of the Acting Commissioner, as announced by
the Administrative Law Judge (“ALJ”) is affirmed.
I. Standard of Review The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .
1 42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §
405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [Acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting 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 [Acting
2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 17, is part of the court’s
record and will be summarized here, rather than repeated in
full.
Moffitt first applied for DIB and SSI in May of 2012,
claiming that since August 6, 2010, she had been disabled by a
bad back, depression, anxiety, and carpal tunnel syndrome
(“CTS”). Her applications were denied, and after a hearing in
December of 2013, an ALJ issued an unfavorable decision. The
Appeals Council remanded the case for another hearing, which
Moffitt received in March of 2016. Among other things, the
3 remand order directed the ALJ to obtain evidence from a
vocational expert (“VE”). After Moffitt’s second hearing, at
which a VE testified, the ALJ issued a second unfavorable
decision, which is the subject of this appeal.
At the time of Moffitt’s second unfavorable decision, she
was 42 years old. She had a high school education and had taken
some on-line college courses. She had past work experience as a
machine operator, as a visual inspector/material handler, and as
a cashier. She has been diagnosed with several physical
ailments including the one that is the subject of one of her two
claims in this appeal, carpal tunnel syndrome. For that
condition, Moffitt had surgery on her right wrist in July of
2013. Medical findings related to Moffitt’s CTS have generally
been described as “mild.”
The record includes a single medical opinion concerning
Moffitt’s physical residual functional capacity (“RFC”).1 In
August of 2012, a non-examining state-agency consultant, Dr.
Hugh Fairley, opined that Moffitt had an unlimited capacity for
three of four manipulative activities, reaching, fingering, and
feeling, but was limited in her capacity for handling (gross
manipulation), and he stated that she should “[a]void frequent
1 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
4 bil[ateral] wrist manipulation.” Administrative Transcript
(hereinafter “Tr.”) 98, 109.
In February of 2014, an occupational therapist, Joan Van
Saun, saw Moffitt and wrote a Functional Capacity Evaluation
(“FCE”). Van Saun’s FCE includes the following statements
relevant to the limitations imposed by Moffitt’s CTS:
Regarding work capacity, it is difficult to predict with accuracy work capacity of a patient with this profile, i.e. primarily subjective pain reports, some inconsistencies on testing . . . .
She does have diagnosed bilateral midcarpal instability and history of carpal tunnel syndrome, so it would be reasonable that she would not be able to perform jobs that required constant handling, such as her job as an assembly person did. . . .
She would probably be capable of work at Sedentary or Sedentary-Light physical demand level job as long as jobs did not require constant use of her hands and as long as work that was required was limited to light handling or fine motor work on up to frequent basis . . . .
Tr. 1333.
As noted, the ALJ heard testimony from a VE at Moffitt’s
second hearing. The ALJ began by asking the VE a hypothetical
question that posited a 42-year-old individual who had taken
some on-line college courses, had Moffitt’s work history, and
had no limitations on reaching, handling, fingering, and
feeling. The VE testified that such a person could perform
Moffitt’s past work: (1) as a machine operator, as she had
performed it, but not as that job is classified in the
5 Dictionary of Occupational Titles; (2) as an inspector, as that
job is generally performed, but not as she had performed it; and
(3) as a cashier. The VE further testified that the person
described in the ALJ’s first hypothetical could perform the jobs
of parts cleaner, retail marker, and laundry worker. Then the
ALJ added an additional limitation to his first hypothetical,
i.e., a requirement that the person “should avoid frequent
bilateral wrist manipulation,” Tr. 58. The VE testified that a
person with that additional limitation could perform the jobs of
order caller, gate attendant, and ticket taker.
After the hearing, the ALJ issued a decision in which he
discussed Moffitt’s CTS at some length, but determined that it
was not a severe impairment, i.e., one that “significantly
limits [her] physical or mental ability to do basic work
activities,” 20 C.F.R. §§ 404.1520(c) & 416.920(c).2 He then
assessed Moffitt as having an RFC that included no manipulative
limitations and determined that she was capable of performing
her past work as a machine operator, as an inspector, and as a
cashier. Finally, he determined that if Moffitt needed to avoid
frequent bilateral wrist manipulation, which was the
manipulative limitation in Dr. Fairley’s RFC assessment, she
2 The ALJ did, however, determine that Moffitt had two severe impairments, obesity and degenerative disc disease. 6 would retain the RFC to perform the jobs of order caller, gate
attendant, and ticket taker.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. § 423(a)(1)(A)-(D). To be eligible for
supplemental security income, a person must be aged, blind, or
disabled, and must meet certain requirements pertaining to
income and assets. 42 U.S.C. § 1382(a). The question in this
case is whether substantial evidence supports the ALJ’s
determination that Moffitt was not under a disability from
August 6, 2010, through the date of his decision, May 4, 2016.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step sequential evaluation process.
See 20 C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform
7 past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted. Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Moffitt’s Claims Moffitt claims that the ALJ erred in assessing her RFC by:
(1) failing to properly consider the combined effect of her
medically determinable impairments; and (2) erroneously
evaluating the testimony she gave regarding her symptoms and
limitations. Neither claim is persuasive
8 1. Combined Effect
The gravamen of Moffitt’s first claim is somewhat difficult
to discern. She begins by invoking a regulation that required
the ALJ to consider the combined effect of all of her physical
impairments, both severe and non-severe. See 20 C.F.R. §§
404.1523 & 416.923. But thereafter, she challenges the
underpinnings of the ALJ’s step-two determination that her CTS
was not a severe impairment and also challenges the ALJ’s
formulation of an RFC that included no manipulative limitations.
She concludes her claim by stating that “[t]he ALJ’s error is
not harmless because the ALJ queried the vocational expert only
about the impact of a limitation to ‘occasional bilateral wrist
manipulation’, rather than any more general limitation in her
handling and/or fingering abilities, as the evidence supports.”
Cl.’s Mem. of Law (doc. no. 12-1) 5-6.
As to the gravity of the ALJ’s purported error(s), claimant
is mistaken; any of the errors she charges the ALJ with making
in her first claim, had he made them, would have been harmless.
First of all, if the ALJ erred in determining that Moffitt’s CTS
was not a severe impairment, that error would have been harmless
because the ALJ found two other impairments to be severe,
continued the sequential evaluation past step two, and
considered the effects of her CTS when formulating her RFC. See
Black v. Acting Comm’r, Soc. Sec. Admin., No. 17-cv-350-JD, 2018
9 WL 2002484, at *5 (D.N.H. Apr. 30, 2018) (citing Garneau v.
Berryhill, No. 16-cv-448-SM, 2017 WL 4512160, at *7 (D.N.H. Oct.
10, 2017)). Second, even if the ALJ erred by failing to include
a manipulative limitation in Moffitt’s RFC, that error would
have been harmless because he posed a hypothetical question to
the VE that incorporated Dr. Fairley’s manipulative limitation,
and the VE testified that there were jobs that could be
performed by a person with that additional limitation.
Finally, Moffitt’s suggestion that the ALJ should have
asked the VE a hypothetical question that included a more
profound limitation on handling and/or fingering than the one he
posited is baseless. That is because the limitation the ALJ
included in his second hypothetical is the most severe
manipulative limitation for which there is adequate support in
the record. It is well established
that since bare medical findings are unintelligible to a lay person in terms of residual functional capacity, the ALJ is not qualified to assess residual functional capacity based on a bare medical record [and] when assessing a claimant’s RFC, the general rule is that an expert is needed to assess the extent of functional loss.
Ouellette v. Berryhill, No. 17-cv-409-SM, 2018 WL 3031855, at *5
(D.N.H. June 19, 2018) (quoting Jabre v. Astrue, No. 11–cv–332–
JL, 2012 WL 1216260, at *8 (D.N.H. Apr. 5, 2012) (citations and
internal punctuation omitted), R. & R. adopted by 2012 WL
1205866 (Apr. 9, 2012)). Here, no expert ever opined that
10 Moffitt had a manipulative limitation more severe than the one
the ALJ included in his second hypothetical question to the ALJ.
The only acceptable medical source who provided an opinion
on Moffitt’s physical RFC was Dr. Fairley. To be sure, Joan Van
Saun provided a Functional Capacity Assessment, but she is an
occupational therapist, and under the Social Security
regulations, that does not qualify her as either an acceptable
medical source or as a medical source of any kind. See 20
C.F.R. § 404.1502(a) & (d); § 416.902(a) & (d). Thus, even if
the manipulative limitations that Van Saun assessed are more
severe than those that Dr. Fairley assessed -- and it is not so
clear that they are -- the ALJ was not permitted to base his RFC
assessment on Van Saun’s FCE because she is not an acceptable
medical source.
In short, because the ALJ continued past step two in the
sequential evaluation process and because the VE testified that
there were jobs that could be performed by a person with the
most severe manipulative limitation for which there is support
in the record from an acceptable medical source, Moffitt’s first
claim provides no valid basis for reversing the ALJ’s decision
and remanding this case.
2. Symptoms and Limitations
Moffitt’s second claim is that when the ALJ assessed her
RFC, he erroneously evaluated her testimony regarding her
11 symptoms and limitations. Specifically, she argues that the
ALJ: (1) disregarded her testimony solely because it was not
substantiated by objective medical evidence; and (2) discounted
her testimony based upon inconsistencies in the statements she
had made to treatment providers at different times. There are
several problems with Moffitt’s claims, but before turning to
them, the court will briefly outline the applicable legal
principles.
Moffitt correctly points out that the Acting Commissioner
of Social Security recently replaced Social Security Ruling
(“SSR”) 96-7p, which focusses on the concept of credibility,
with SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016), which
moves away from the concept of credibility and reframes the
requisite analysis for evaluating a claimant’s statements of
symptoms.
SSR 16-3p begins by stating that under SSA regulations, “an
individual’s statements of symptoms alone are not enough to
establish the existence of a physical or mental impairment or
disability,” 2016 WL 1119029, at *2, and goes on to say that “if
an individual alleges impairment-related symptoms, we must
evaluate those symptoms using a two-step process set forth in
our regulations [i.e., 20 C.F.R. §§ 404.1529 & 416.929],” id.
These are the two steps:
12 First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities . . . .
Id. With regard to the second step, SSR 16-3p provides, in
[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities . . . .
. . . .
However, we will not disregard an individual’s statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.
Id. at *4-5.
As noted, Moffitt claims that the ALJ erred by disregarding
her statements of symptoms solely because they were not
substantiated by the objective medical evidence. In so doing,
she quotes a passage from the ALJ’s decision in which he
“note[d] several instances ‘in the claimant’s medical records
indicating that her alleged symptoms and limitations are
inconsistent with her activities and medical findings,’” Cl.’s
13 Mem. of Law (doc. no. 12-1) 7 (quoting Tr. 30) (emphasis added).
In other words, the very passage on which Moffitt relies for the
proposition that the ALJ relied solely upon a lack of
substantiation from objective medical evidence to disregard her
statements of symptoms demonstrates that the ALJ also relied
upon a lack of substantiation from information about her
activities to discount those statements. And indeed, SSR 16-3p
identifies a claimant’s “[d]aily activities” as a factor to
consider when evaluating a claimant’s statements about her
symptoms. 2016 WL 1119029, at *7. In all, the first part of
Moffitt’s claim gives the court no reason to reverse the ALJ’s
decision.
The second part of Moffitt’s claim is also unavailing. She
asserts that the ALJ erred by determining that her statements of
symptoms were suspect because they were inconsistent with each
other over the course of time. While SSR 16-3p cautions against
putting too much stock in such inconsistencies in a claimant’s
statements because “[s]ymptoms may vary in their intensity,
persistence, and functional effects, or may worsen or improve
with time,” 2016 WL 1119029, at *8, the ALJ did not do what SSR
16-3p cautions against. The court has carefully read the ALJ’s
decision, and while it makes several references to
inconsistencies, see Tr. 30-33, the ALJ refers to
inconsistencies between Moffitt’s statements and the objective
14 medical evidence and to inconsistencies between her statements
and her activities, but never once does he discount her
statements because they were inconsistent with each other over
the course of time. Accordingly, the second part of Moffitt’s
argument gives the court no reason to reverse the ALJ’s
To sum up, Moffitt has identified nothing in the ALJ’s
decision that violate the precepts of SSR 16-3p.
IV. Conclusion
Because the ALJ has committed neither a legal nor a factual
error in evaluating Moffitt’s claim, see Manso-Pizarro, 76 F.3d
at 16, her motion for an order reversing the Acting
Commissioner’s decision1 is denied, and the Acting Commissioner’s
motion for an order affirming her decision2 is granted. The
clerk of the court shall enter judgment in accordance with this
order and close the case.
SO ORDERED. ___________________________ Joseph N. Laplante United States District Judge
Dated: September 5, 2018
cc: D. Lance Tillinghast, Esq. Terry L. Ollila, AUSA 1 Doc. no. 12.
2 Doc no. 16.