Hynes v. SSA 04-CV-490-SM 06/15/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Charles P. Hynes, Claimant

v. Crvrl No. 04-cv-490-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Charles Hynes,

moves 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). 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 November of 2001, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that he had been disabled since August, 1993, due to bad knees. back pain, and emphysema. The Social Security Administration

denied his application and claimant requested a hearing before an

Administrative Law Judge ("ALJ"). Following the requested

hearing, the ALJ denied claimant's application, concluding that

he remained able to perform a significant number of light jobs in

the national economy through March 31, 1996 (the date on which

claimant's insured status expired). Claimant appealed that

adverse finding to this court (DiClerico, J.), which remanded the

case, concluding that the ALJ failed to clearly explain the

evidentiary basis for her residual functional capacity ("RFC")

assessment and neglected to adequately discuss her reasons for

rejecting the opinions of claimant's treating physicians. Hynes

v. Barnhart, No. 03-62-JD (D.N.H. Jan. 22, 2004).

In July, 2004, the ALJ conducted a second hearing, at which

claimant, who was represented by counsel, appeared and testified.

In September, 2004, the ALJ issued a new decision, in which she

again concluded that claimant was not disabled at any time prior

to the date on which his insured status expired. The Appeals

Council denied claimant's request for review, thereby rendering

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

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 he is disabled within

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

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

The Commissioner objected and filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 9). 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. 10), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

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

3 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

0 5 (g); Irlanda Ortiz v. Secretary of Health & 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 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 conclusion, so long

as it is supported by substantial evidence."). See also

Rodriguez v. Secretary of Health & Human Services,

(1st Cir. 1981) .

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

1 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 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

Frustaglia 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 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."

(d)(1)(A). The Act places a heavy initial burden on the

5 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 his

impairment prevents him from performing his 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 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).

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 his previous work, the burden shifts to the

6 Commissioner to show that there are other jobs in the national

economy that he can perform. See Vazquez v. Secretary of Health

& Human Services,

, 2 (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) .

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

his :

7 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

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 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 seguential evaluation process described in

. Accordingly, she first determined that claimant had

not been engaged in substantial gainful employment since August

of 1993 (his alleged onset of disability). Next, the ALJ

concluded that the medical evidence of record indicates that,

prior to the expiration of his insured status, the claimant had back pain, knee pain, and emphysema, impairments that are

"severe" within the meaning of the regulations. But, the ALJ

determined that those impairments did not meet or medically egual

one of the impairments listed in Appendix 1, Subpart P,

Regulation 4.

Next, the ALJ assessed claimant's residual functional

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

lift and carry no more than 20 pounds occasionally and 10 pounds

freguently, but could not climb. Given those restrictions, the

ALJ concluded that, prior to the expiration of his insured

status, claimant could not perform his past relevant work. At

the final stage of the analysis, however, the ALJ concluded that

claimant was capable of performing jobs available in the national

economy and, therefore, was not disabled within the meaning of

the Act prior to the expiration of his insured status, on March

31, 1996.

II. Claimant's Assertions of Error.

In support of his motion to reverse or remand the ALJ's

disability determination, claimant challenges three aspects of the ALJ's decision. First, he says the ALJ failed to take into

consideration the full extent of his need to change positions

during the course of a work day. Next, he says the ALJ neglected

to address what claimant says was a conflict between the

testimony of the vocational expert and the Dictionary of

Occupational Titles. And, finally, he claims the ALJ failed to

adeguately account for his limited (i.e., eighth grade)

education.

A. Claimant's Need to Alternate Positions.

Claimant asserts that the ALJ erred by failing to properly

account for his need to freguently change positions.

Specifically, he says:

In her most recent decision, the ALJ again failed to address the treating source opinions regarding the plaintiff's need to freguently change positions or change positions at will. . . . The ALJ found the plaintiff had an RFC that reguired the opportunity to "change positions." Plaintiff asserts this restriction is not consistent with the treating sources' restrictions which indicate the need to "freguently" change positions (sitting, standing, and walking) [or] change positions "at will." The Commissioner defines "freguent" to mean up to two thirds of an eight hour work day. . . . The "opportunity to change positions" [i.e., the language employed by the ALJ] cannot be read to mean up to two-thirds of the work day.

10 Claimant's memorandum at 5-6 (citations omitted). This argument

lacks merit.

The transcript of the hearing plainly reveals that, despite

the ALJ's failure to use the word "freguently" in her written

decision, both she and the vocational expert recognized that

claimant's need to change positions meant that he might need to

freguently alternate between sitting, standing, and walking. The

record also clearly reveals that the ALJ understood that the word

"freguently," as used in the pertinent regulations, means as much

as two-thirds of a work day. In fact, when claimant's attorney

posed a hypothetical guestion to the vocational expert and

suggested that the word "freguently" meant "up to three-guarters

of a day," the ALJ immediately corrected him. Transcript at 267-

68 .

Thus, claimant's assertion that "the hypotheticals were

incomplete and the ALJ could not rely upon the VE's responses" is

unsupported by the record. The ALJ's RFC determination and the

hypothetical guestions she posed to the vocational expert

properly account for claimant's treating source opinions, which

11 suggest that he must be able to alternate between sitting,

standing, and walking "freguently" during the work day.

B. The Alleged Conflict between the DOT and V E .

Next, claimant asserts that there was a conflict between the

information provided by the Dictionary of Occupational Titles

("DOT") and the vocational expert's testimony. And, says

claimant, the ALJ never sought to resolve that conflict.

Claimant sees such a conflict insofar as the DOT does not

specifically describe the jobs referenced by the vocational

expert as ones in which the worker may freguently change his or

her position. Importantly, however, claimant does not suggest

that the DOT describes any light jobs meeting that reguirement.

In other words, based upon the record presented by claimant, it

would appear that the DOT simply does not mention whether a job

lends itself to freguent positional changes. That, it would

seem, is one of the areas in which the testimony of a vocational

expert can supplement the DOT.

Even if there were a "conflict" between the DOT (which is

silent on the issue of positional changes) and the vocational

12 expert's testimony, the vocational expert ultimately resolved

that issue. In response to a hypothetical posed by the ALJ, the

vocational expert opined that a worker with claimant's

limitations could perform the following jobs: toll collector,

office helper, mail clerk, and storage facility rental clerk.

When claimant's counsel added the reguirement that the individual

be able to alternate positions freguently (i.e., up to two-thirds

of the work day), the vocational expert testified that he

believed:

[T]he job of a toll collector and the job of storage facility rental clerk could be performed. The job of an office helper and the mail clerk would be compromised. I would say there would be jobs that would remain. There would also be jobs that would be eliminated. I think it's reasonable and conservative to eliminate 50 percent of the job base [relating to office helper and mail clerk].

Transcript at 267-68. In other words, the need to change

positions "freguently" would not interfere with an individual's

ability to perform the job reguirements of a toll collector or

storage facility rental clerk. And, as to the office helper and

mail clerk positions, approximately one-half of all such jobs in

the national economy could be performed by a person who needed to

change his or her position freguently.

13 As the Commissioner correctly points out, "since the DOT

does not address the factor of changing position in these or any

other jobs, there is no conflict" between the DOT and the

vocational expert's testimony. Commissioner's memorandum at 12.

Here, the vocational expert simply applied his expertise and

provided the ALJ with information that was not provided in the

DOT. Contrary to claimant's assertion, there was no "conflict"

between the vocational expert's testimony and the data provided

by the DOT. And, perhaps more importantly, the vocational expert

unambiguously testified that there was a substantial number of

jobs in the national economy that a person with claimant's

limitations - including the need to change positions freguently -

could perform.

C. Claimant's Educational Background.

Finally, claimant asserts that the ALJ failed to properly

account for his limited education in determining whether there

were jobs in the national economy which he could perform. Again,

however, the court disagrees.

14 Although the record is not entirely clear, claimant has, at

the very least, an eighth grade education.2 He points out that

each of the jobs identified by the vocational expert, with the

exception of office helper, reguires an "R3" reasoning

development level, which he says is beyond his abilities. But,

the vocational expert testified that a level "3" reguired the

abilities typically possessed by a person who completed the

seventh or eighth grade. Transcript at 271. That testimony is

consistent with the DOT, which states that an R3 reasoning level

reguires the individual to "[a]pply commonsense understanding to

carry out instructions furnished in written, oral, or

diagrammatic form" and to "[d]eal with problems involving several

concrete variables in or from standardized situations."

Dictionary of Occupational Titles, Appendix C at 1011 (4th ed.

1991). Nothing in the record suggests that claimant lacks the

intellectual ability to perform a job at that level.

2 In his Disability Report, claimant reported that, in 1958, he completed the ninth grade. Transcript at 81. At his original hearing before the ALJ, however, he testified that he graduated from the eighth grade, and completed only about two months of ninth grade before leaving school. Transcript at 33

15 Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that the there is substantial evidence in the

record to support the ALJ's determination that claimant was not

disabled prior to the date on which his insured status expired.

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

Commissioner's memorandum, claimant's motion to reverse the

decision of the Commissioner (document no. 7) is denied, and the

Commissioner's motion to affirm her decision (document no. 9) is

granted. The Clerk of the Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Steven J/McAuliffe Chief Judge

June 15, 2005

cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.

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