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

(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.

4

. 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 . . . .

(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,

(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.

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."

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."

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."

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.

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.

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