Horan v. SSA CV-03-232-M 05/03/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Deborah L. Horan, Claimant

v. Civil No. 03-232-M Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration, Respondent

O R D E R

Pursuant to

(g), claimant, Deborah Horan,

moves to reverse the Commissioner's decision denying her

application for Supplemental Security Income Payments under Title

XVI of the Social Security Act,

(the "Act").

Respondent objects and moves for an order affirming her decision.

For the reasons set forth below, the Commissioner's motion for an

order affirming her decision is granted.

Factual Background

I. Procedural History.

In February of 1993, claimant filed an application for

supplemental security income ("SSI") payments under Title XVI of

the Act. That claim was denied. Subseguently, in April of 1998, claimant filed a second application for SSI benefits. That

claim, too, was denied. Most recently, on January 26, 1999, she

filed a third claim for SSI benefits, alleging that she was

disabled due to back pain, neck pain, and depression. The Social

Security Administration denied her application initially and on

reconsideration. Claimant then sought an administrative hearing.

On July 13, 2000, claimant, her attorney, and a vocational

expert appeared before an Administrative Law Judge (ALJ) who

considered her claims de novo.1 The ALJ issued his order on

September 28, 2000, concluding that, although subject to some

restrictions, claimant was capable of performing light work and

was not, therefore, disabled. On October 1, 2002, the Appeals

Council denied claimant's reguest for review, thereby rendering

the ALJ's decision the final decision of the Commissioner.

1 The ALJ's decision states that the hearing was held on January 26, 1999. That was, however, the date on which claimant filed her application for benefits. Accordingly, the court has assumed that the ALJ's reference to a hearing on January 26, 1999, is simply a typographical error. See Transcript at 24, Transcript of Administrative Hearing (bearing a date of July 13, 2000) . See also Joint Statement of Material Facts at 1 (in which the parties agree that the hearing was held on July 13, 2000).

2 In response, claimant filed this timely action, asserting

that the ALJ's decision was not supported by substantial evidence

and seeking a judicial determination that she is disabled within

the meaning of the Act.2 Claimant then filed a "Motion for Order

Reversing the Decision of the Commissioner" (document no. 5).

The Commissioner objected and filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 7). Those

motions are pending.

II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court's record (document no. 8), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

2 Claimant also seems to suggest that the ALJ's decision should be reversed (or, at a minimum, vacated) because there is substantial evidence in the record to support her assertion that she is disabled. See, e.g.. Claimant's motion at 3. Even if that is true, however, it does not compel the conclusion that the ALJ's decision must be reversed or vacated. Under the governing standard of review, the court's primary focus is not on whether a claimant's position is supported by substantial evidence. Instead, it must determine whether the ALJ's decision is supported by substantial evidence. When both views are supported by substantial evidence, the court is obligated to affirm the ALJ's decision.

3 Standard of Review

I. Properly Supported Factual Findings by the ALJ _____ 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

Commissioner of Social Security, 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 &

Human Services,

(1st Cir. 1991).3 Moreover,

provided the ALJ's findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

See Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988) ("[W]e must uphold the [Commissioner's]

conclusion, even if the record arguably could justify a different

3 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).

4 conclusion, so long as it is supported by substantial

evidence."). See also Gwathney 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.");

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

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. See

5 Frustaqlia v. Secretary of Health & Human Services,

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

Human Services,

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual seeking SSI payments 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. § 1382c(a)(3).

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 & Human Services,

(1st Cir. 1991). To

satisfy that burden, the claimant must prove that her impairment

prevents her from performing her former type of work. See Gray

v. Heckler,

(1st Cir. 1985) (citing Goodermote

v. Secretary of Health & Human Services,

(1st Cir.

1982)). Nevertheless, the claimant is not required to establish

a doubt-free claim. The initial burden is satisfied by the usual

6 civil standard: a "preponderance of the evidence." See Paone v.

Schweiker,

(D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant's subjective assertions 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 & Human Services,

(1st Cir. 1986);

Goodermote,

. Provided the claimant has shown 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. See Vazguez v. Secretary of Health

& Human Services,

(1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker,

(D.N.H. 1982).

7 When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals 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.

. Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, consi dering [her] age, education, and work experience, engage in any other kind of substantial gainful wor k which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

8 With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm the

determination that claimant is not disabled.

Discussion

I. 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

. Accordingly, he first determined that claimant had not

been engaged in substantial gainful employment since January 26,

1999 (her alleged onset of disability). Next, the ALJ concluded

that the medical evidence of record indicates that claimant has

an "adjustment disorder, disorders of the back, discogenic and

degenerative, impairments which cause significant vocationally

relevant limitations." Transcript at 17. Nevertheless, he

concluded that claimant suffered from no impairment(s) which met

or equaled an impairment listed in Appendix 1 of the pertinent

regulations. Next, the ALJ assessed claimant's residual functional

capacity ("RFC") and concluded that she retained the ability to

perform light work, "diminished by significant non-exertional

limitations which make it impossible for her to work in exposure

to environmental irritants, extreme cold, extreme heat, humidity,

dust[,] fumes[,] or odors." Transcript at 20. He also concluded

that claimant lacks the ability to read and write and can only

perform simple tasks. Finally, he determined that she could

stoop, climb, kneel, crouch, and crawl only occasionally and

reguired the ability to sit or stand at will.

Given claimant's RFC, and based upon the testimony of the

vocational expert, the ALJ concluded that claimant could not

return to her prior work as a cleaner, but was capable of making

an adjustment to work which exists in significant numbers in the

national economy. Accordingly, he concluded that she was not

disabled, within the meaning of the Act.

II. Claimant's Assertions of Error.

In support of her assertion that the ALJ's decision should

be reversed or, at a minimum, vacated, claimant advances three

10 arguments. First, she says the ALJ incorrectly determined her

RFC by failing to consider the combined disabling effect of her

impairments. Next, in a related argument, she claims the ALJ

erred in concluding that she retained the ability to perform a

limited range of light work; instead, she asserts that the ALJ

should have found her capable of, at most, sedentary work.

Finally, claimant says the ALJ erred in determining her

educational background and her ability to adjust to other work

found in the regional and national economy.

A. Claimant's RFC and the Effect of Claimant's Multiple Impairments.

In determining claimant's RFC, the ALJ properly considered

such factors as: (1) claimant's ability to care for herself and

her two children and to prepare all meals for the family; (2) her

ability to perform household cleaning activities; and (3) her

ability to shop for the family (with help carrying heavy bags of

groceries). The ALJ also considered the report prepared by the

state agency medical consultant, who opined that claimant was

capable of carrying 10 pounds freguently and 20 pounds

occasionally; could climb, balance, stoop, kneel, crouch, or

11 crawl only occasionally; and was precluded from performing tasks

that required overhead reaching or repetitive bending.

The record contains substantial evidence to support the

ALJ's finding. Among other things, it contains references to

claimant's efforts to obtain notes from her physicians excusing

her from work. Those efforts were unsuccessful. In a note dated

December 11, 1998, J. Gavin Muir, M.D. opined that claimant has a

low tolerance for pain and diagnosed her with "chronic low back

pain; abdominal pain, unknown resolution; question of

somatization." He also noted that she was not entirely compliant

in taking her medications. He concluded that:

At this time, given that I have not seen her in over a month, she certainly is able to work in all capacities. She would be able to walk, sit and stand without problem through a typical 8-hour day. I believe her weight restriction should be limited to 20 pounds occasionally and 10 pounds frequently. The patient has received some improvement with conservative measures such as non-steroidal anti-inflammatory drugs, and I believe continued use of this family of drugs with the possibility of physical therapy if it persists could help her make a full recovery.

Transcript at 213. In January of 1999, Dr. Muir reaffirmed his

view that claimant was not precluded from gainful employment.

12 saying "I don't think that she should be removed from the work

force at this time."

. He repeated that view again in

April.

.

More recently, a physical therapist who had been treating

claimant made the following observations in claimant's discharge

note:

[Claimant] was seen this afternoon and is reporting that her neck and back pain has not changed and that she has had a headache for the past four days. She rates her headache as a 10 out of 10 and her back pain as 8 out of 10. She comes into the clinic with her two children who are running around the clinic. [Claimant] was able to chase and pick up her children without significant or obvious complaints of pain.

Id. at 294. In light of those observations, there is at least a

suggestion that claimant may tend to overstate the severity of

her pain. And, given the other record evidence, the ALJ's

decision to discount her subjective complaints of pain is

supported by substantial evidence.

For the reasons set forth above, as well as those discussed

in greater detail in the Commissioner's memorandum, the court

concludes that there is substantial evidence in the record to

13 support the ALJ's determination that claimant retains the RFC to

perform the exertional demands of a range of light work, subject

to limitations caused by her inability to work in certain

environments, her inability to stoop, crawl, or kneel more than

occasionally or to bend repetitively, her need to alternate

between a seated and standing position, and her inability to read

or write.

The record does not support claimant's assertion that the

ALJ failed to consider the combined effect of her multiple

impairments. As is evident from the ALJ's conclusions regarding

claimant's RFC, he plainly took into consideration her multiple

impairments when determining the level (and type) of physical

exertion she was capable of performing. For example, although

the record contains minimal evidence of claimant's asthma and its

effect on her ability to perform work-related tasks, her RFC

accounts for that ailment by limiting her to working in

environments that are free from environmental irritants and dust.

It also accounts for her intellectual abilities by limiting her

to employment that does not reguire her to perform more than

simple tasks, to follow complex instructions, or have the ability

14 to read or write. It also accounts for her need to alternate

between a seated and standing position at will.

B. Claimant's Educational Background and Her Ability to Adapt to Other Work in the National Economy.

Next, claimants says the ALJ erred in concluding that she

"has a high school education." Transcript at 22. Specifically,

she takes issue with the ALJ's failure to specifically

acknowledge that, while she graduated from high school, she was

enrolled in so-called "special education" classes. What claimant

seems to suggest is that the ALJ erred in concluding that,

notwithstanding her limited ability to read and write, she has

the ability to adapt to a number of jobs in the national economy.

Instead, says claimant, the ALJ should have found that she is

"illiterate or limited or less."

The label the ALJ used to describe claimant's abilities is

not critically important in the context of this case, since he

did not rely exclusively on the Medical Vocational Guidelines

(also known as the "Grid") to direct his finding of no

disability. Instead, he posed a series of guestions to a

vocational expert, taking into consideration each of the

15 limitations from which he found claimant suffered. See, e.g..

Transcript at 20 ("Strict application of [the Grid] is not

possible, however, as the claimant has non-exertional limitations

which narrow the range of work she is capable of performing.").

With regard to claimant's limited ability to read and write, the

ALJ specifically instructed the vocational expert to exclude from

consideration any jobs that might involve any reading or writing.

The ALJ's hypothetical also took into account each of claimant's

other limitations.

[Claimant] has a residual functional capacity for light and sedentary work, but she has limitations. She's unable to perform the full range of that work. For instance, she has postural limitations. The medical evidence shows she has postural limitations, which I would say involve the ability to only occasionally climb, stoop, kneel, crouch and crawl. Plus, she has asthma without too much evidence showing how severe it is. But I'm going to assume, based on what she's testified to, that she must avoid concentrated exposure to cold, heat, wetness, humidity, fumes, odors, dust, gases, poor ventilation. Ms. Ferro [attorney for claimant], you can add anything you want to that in your own hypothetical if you feel it's not all- inclusive. Any work environment, for her, must involve tasks, non-complex instructions. She has no useful work ability to read and write. By that, Ms. Ferro, I mean that as far as reading and writing is concerned, if she had a job that reguired that, she could not do that type of job. So I want to exclude those jobs. As I said, simple tasks, non-complex instructions. She is

16 unable to work at a production pace. And lastly, she needs a sit/stand option at will.

Id. at 63-64. When asked, claimant's attorney declined to

supplement the limitations presented by the ALJ is his

hypothetical. Id. at 68. And, based upon that hypothetical, the

vocational expert identified three jobs in both the national and

regional economy that claimant might perform - each of which is

available at both the light and sedentary exertional level. Id.

at 65-67 .

Finally, although the precise nature of her argument is

unclear, claimant seems to suggest that the ALJ erred by failing

to account for her "mental retardation and autism" in his

hypothetical to the vocational expert. See Claimant's memorandum

at 8. The record does not, however, support claimant's

suggestion that she suffers from either mental retardation or

autism. Claimant's "Psychiatric Review Technigue Form" (the

documentary evidence in the record upon which claimant relies)

merely indicates that she suffers from a "learning disability,"

which is one sign and/or symptom of retardation and autism. See

Transcript at 80-81. All other signs and symptoms of retardation

17 and autism (e.g., mental incapacity, I.Q. of 70 or less, gross

deficits of social and communicative skills, etc.) were, however,

absent. Id.

It is, therefore, inaccurate to say that claimant has been

diagnosed with either mental retardation or autism. Nor was it

error for the ALJ to omit such mental deficits from the

hypothetical he posed to the vocational expert. And, perhaps

more to the point, the record suggests that claimant is fully

capable of making the necessary adjustments to other work

available in the national and regional economy. For example, in

his "Comprehensive Psychological Profile" of claimant, Robert W.

Mullaly, Ph.D., wrote:

With regard to sensorium functions, she is essentially clear, lucid, intact, and responsive. She seems to be at least of average intelligence, articulate, and socially skilled in her presentation. She is oriented as to person, place and time. She shows no primary disturbances in memory. There is no specific disturbance in attention, concentration or focus, persisten[ce], pace or participation in the present interview. Her general knowledge, fund of information seemed consistent with her past educational and employment experiences. There does not seem to be any

18 deterioration or decompensation noted in either cognitive or affective functioning in this mental status examination.

Transcript at 264. Dr. Mullaly diagnosed claimant as suffering

from "an adjustment disorder" with "mixed symptoms of anxiety and

depression [which] does not meet the criteria for [a] more

serious mood disorder." Id. at 266. As to claimant's specific

ability to adapt to the demands of work available in the national

and regional economy. Dr. Mullaly concluded that there "does not

seem to be any primary psychiatric disorder that would interfere

with her adaptation to work or work-like situations." Id.

Conclusion

For the reasons set forth above, as well as those in the

Commissioner's memorandum, the court concludes that there is

substantial evidence in the record to support the ALJ's

determination that claimant was not disabled at any time prior to

the date of his decision. Accordingly, claimant's motion to

reverse the decision of the Commissioner (document no. 5) is

denied, and the Commissioner's motion to affirm her decision

(document no. 7) is granted. The Clerk of the Court shall enter

judgment in accordance with this order and close the case.

19 SO ORDERED.

Steven J. McAuliffe United States District Judge

May 3, 2004

cc: James W. Craig, Esg. David L. Broderick, Esg.

20