Gauthier v. SSA CV-98-575-M 11/09/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Bruce A. Gauthier, Claimant

v. Civil No. 98-575-M

Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant.

O R D E R

Claimant Bruce A. Gauthier moves pursuant to

(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"),

. 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

(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

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health and Human Services,

(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,

, 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,

(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,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(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,

(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,

(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.,

(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,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health and

Human Services,

(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."

(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,

(1987); Santiago v.

Secretary of Health and Human Services,

(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,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(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,

(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,

(1st Cir. 1986); Goodermote,

. 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,

(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,

(1st Cir. 1974); Benko v.

Schweiker,

(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.

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. 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 . . . .

2 3 (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. 8), 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 an application for disability benefits on

November 13, 1996, alleging that he became unable to work due to

a disabling condition on April 13, 1993. Claimant described his

disabling condition as "[1]unotriguetral instability right wrist

and similar m i d [-]carpal shift on the left wrist. [R]ight hip pop

in and out when doing heavy weight lifting. [T]his is from an old

worker's [compensation] injury." (R. at 99.)2 Claimant's

application was denied on December 12, 1996, and again on

2Citations to the record are to the certified transcript of record filed by the Commissioner with the court.

5 reconsideration on March 2 1 , 1997. Claimant requested, and was

given, a hearing before an ALJ. On January 12, 1998, the ALJ

issued a decision denying claimant disability benefits.

The ALJ found that claimant had not engaged in substantial

gainful activity since his alleged onset date. The ALJ further

determined that claimant had severe impairments consisting of

right wrist derangement and degenerative arthritis. The ALJ also

found, however, that although claimant suffered hip pain and had

been diagnosed with iliotibial band syndrome, his hip impairment

was not severe. Furthermore, the ALJ concluded that none of

claimant's impairments, either alone or in combination, met or

equaled a listed impairment.

In assessing claimant's residual functional capacity

("RFC"), the ALJ found that claimant could lift and carry 20

pounds occasionally and 10 pounds frequently with his left hand,

but only 5 pounds with his right. The ALJ found claimant's RFC

to be further limited by the need to avoid "rapid, repetitive

movements with his dominant right wrist and . . . working in

cold, damp environments." (R. at 19.) The ALJ also concluded

that claimant could balance, kneel, stoop, crouch and crawl

occasionally and that he had no mental functioning limitations.

The ALJ found that in light of his RFC, claimant could not

perform his past relevant work as a laborer, carpenter, route

driver and grinder. The ALJ concluded, however, that claimant

could perform other work that existed in the significant numbers

in the regional and national economies, namely, the jobs of photo

6 machine processor, usher/lobby attendant, and security guard.

The ALJ therefore found that claimant was not disabled.

Claimant sought review by the Appeals Council, which denied

his reguest on September 4, 1998. Claimant now appeals to this

court.

Discussion

Claimant argues that the ALJ's decision is erroneous because

it failed to account for the disabling effects of claimant's hip

impairment and because it failed to give proper weight to the

limitations noted by claimant's treating physicians. Claimant

does not elaborate on the first alleged error. The court notes,

however, that the ALJ did consider the extent of claimant's hip

problems in finding, at step two of the seguential analysis, that

the impairment was not severe. The ALJ stated:

The record also documents that the claimant experiences hip pain and has been diagnosed with an iliotibial band syndrome. By his own admission, this has been an episodic problem for approximately 20 years. X-rays of the claimant's hip have been reported to be normal and his hip range of motion was described as within normal limits. The claimant described his symptoms as intermittent and, therefore, his treating physician felt that this problem would be difficult to treat with medication. The physician did recommend conservative care including a regular stretching program and over- the-counter anti-inflammatory medication for the pain. Because there has been only one occasion in which the claimant has sought treatment for this problem and because the claimant, by his own admission has acknowledged that this problem is episodic and does not appear to interfere with his activities of daily living, I find that his hip problem is "not severe."

(R. at 15-16.)

7 A finding that an impairment is not severe does not,

however, remove that impairment from further consideration,

provided that one or more other impairments are severe (i.e.,

provided that the sequential analysis proceeds beyond step two).

In determining a claimant's RFC, the ALJ must consider all of

claimant's impairments, including those that are not severe. See

(e); SSR 96-8p,

, at *5 (Social

Security Administration July 2, 1996) . "While a 'not severe'

impairment(s) standing alone may not significantly limit an

individual's ability to do basic work activities, it may - when

considered with limitations or restrictions due to other

impairments - be critical to the outcome of a claim." SSR 96-8p,

, at *5.

The ALJ here discussed claimant's complaints of hip pain in

determining his RFC. Although the ALJ did not explicitly explain

what effect, if any, claimant's hip problem had on his RFC, the

ALJ gave the impairment sufficient consideration. The court also

notes that claimant himself stated that his hip bothered him when

doing heavy lifting. Since the RFC determined by the ALJ limited

claimant's lifting ability to no more than 10 pounds frequently

and 20 pounds occasionally, with no more than 5 pounds to be

lifted with his right hand, it appears to have effectively, if

not intentionally, accounted for claimant's hip impairment.

Claimant also argues that the ALJ failed to give appropriate

weight to limitations found by his treating physicians. To the

contrary, the ALJ specifically noted that she "attached considerable weight to the opinion of Dr. Bloom, the claimant's

treating physician, who felt that the claimant had a significant

work capacity, but should avoid tasks that reguire heavy lifting

and carrying or activities that reguired the repetitive use of

his wrist." (R. at 21.) Claimant also considers Dr. Lawrence

Gray, a plastic surgeon he consulted in June, 1997, to be a

treating physician whose opinion is entitled to greater weight

than that of a non-treating physician. See

(d)(2) (Social Security Administration will generally give

more weight to opinions of treating practitioners). Claimant

notes that Dr. Gray completed a medical evaluation of claimant's

ability to perform work-related activities. He opined that

claimant could not lift more than 5 pounds, and that his

abilities to handle, feel, push, pull and tolerate vibration were

affected by his impairment. Dr. Bloom did not continuously note

such limitations.3

Claimant fails to explain how any of these limitations

precludes the performance of any occupation the vocational expert

identified as within his capabilities. Indeed, as for the five

pound lifting restriction, the vocational expert specifically

testified that such a limitation would not affect the

occupational base she had indicated.

3Dr. Bloom did note on April 28, 1993, less than three weeks after claimant had arthroscopic surgery, that claimant was restricted to "no forceful push or pull," (R. at 150), but does not refer to such a limitation thereafter. Moreover, the ALJ was entitled to give Dr. Bloom's opinion

greater weight than Dr. Gray's. Social Security Administration

regulations provide that " [g]enerally, the longer a treating

source has treated you and the more times you have been seen by a

treating source, the more weight we will give to the source's

medical opinion."

(d)(2)(i). Dr. Bloom

treated claimant for his wrist problems from April of 1992

through January of 1997. During that time, claimant was seen by

Dr. Bloom no fewer than fourteen times, not including Dr. Bloom's

performance of arthroscopic surgery on claimant's wrist in 1993

and a post-surgical follow-up with another practitioner in Dr.

Bloom's office. The record indicates only three visits to Dr.

Gray, on June 19 and 26, 1997, and December 4, 1997, on which

date Dr. Gray completed a medical assessment form for claimant.

Although Dr. Gray saw claimant more recently than Dr. Bloom,

claimant's testimony at the hearing indicated that his condition

had deteriorated little if any during 1997. Claimant testified:

"I think it's staying the same if not getting a little worse."

(R. at 38 .)

The ALJ also asked claimant about his ability to perform

daily living activities, including those reguiring dexterity and

handling or feeling ability, such as buttoning a shirt (which

claimant stated he could do) and tying shoes (which claimant was

less clear about, testifying that he left his shoes tied loosely

so he could slip in and out of them without having to tie the

laces). The ALJ could use such testimony to determine what

10 weight to give Dr. Gray's opinion on claimant's limitations. See

(d)(6)("When we consider how much weight to

give to a medical opinion, we will also consider any factors you

or others bring to our attention, or of which we are aware, which

tend to support or contradict the opinion."); Oqburn v.

Commissioner of Social Sec. Admin.,

(E.D.

Tex. 1997)("Considering the conflicting evidence from plaintiff's

earlier treating physicians, and plaintiff's own testimony

regarding his physical ability, the court finds that the ALJ had

good cause to place less weight on [another doctor's] single,

conclusory report.").

The court finds that there is substantial evidence in the

record to support the Commissioner's decision. Accordingly, that

decision is affirmed.

______________________________Conclusion

For the foregoing reasons, the claimant's motion to reverse

the decision of the Commissioner (document no. 5) is denied and

the Commissioner's motion for order affirming the decision of the

Commissioner (document no. 7) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge November 9, 1999

cc: Vicki S. Roundy, Esg. David L. Broderick, Esg.

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