Pacheco v . SSA 08-CV-146-SM 02/24/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Bonnie M . Pacheco, Claimant

v. Civil N o . 08-cv-146-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Bonnie Pacheco, moves to reverse the Commissioner’s decision

denying her applications for Social Security Disability Insurance

Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under Title XVI

of the Social Security Act,

-1383c. The

Commissioner objects and moves for an order affirming his

decision.

Factual Background

I. Procedural History.

On September 1 8 , 2006, claimant filed applications for

disability insurance benefits and supplemental security income

benefits under Titles II and XVI of the Act, alleging that she had been unable to work since December 2 9 , 2005. Her

applications were denied initially and upon subsequent review by

a Federal Reviewing Official.1 Claimant then requested a hearing

before an Administrative Law Judge (“ALJ”).

On October 1 6 , 2007, claimant and her non-attorney advocate

appeared before an ALJ, who considered claimant’s applications de

novo. At that hearing, claimant amended her alleged disability

onset date to September 2 3 , 2005. On November 2 7 , 2007, the ALJ

issued his written decision, concluding that claimant retained

the residual functional capacity to perform the physical and

mental demands of the full range of sedentary work and could,

therefore, perform her past relevant work as a parimutuel ticket

teller. Accordingly, the ALJ concluded that claimant was not

disabled, as that term is defined in the Act, at any time through

1 Claimant’s applications were reviewed under the new administrative review process, pursuant to which a “Social Security claimant must first petition the Commissioner of Social Security for benefits. Upon review of the claim, the agency issues an initial determination. A claimant who is dissatisfied with the initial determination may request further review by a federal reviewing official. If the claimant is still dissatisfied, she may request a hearing before an Administrative Law Judge (“ALJ”). The decision of the ALJ is the final decision of the Commissioner unless the claim is referred to the Decision Review Board or Appeals Counsel. A final decision may be reviewed in federal district court.” Wrenn v . Astrue,

(10th Cir. 2008) (citations omitted). See generally

, et seq.

2 the date of his decision. On May 2 , 2008, the Decision Review

Board affirmed the ALJ’s decision, thereby making his denial of

claimant’s applications for benefits the final decision of the

Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

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. She then filed a

“Motion for Order Reversing Decision of the Commissioner”

(document n o . 9 ) . In response, the Commissioner filed a “Motion

for Order Affirming the Decision of the Commissioner” (document

no. 1 0 ) . Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document n o . 1 1 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

3 Standard of Review

I. Properly Supported 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.2 See

(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &

Human Services,

(1st Cir. 1991). 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 contrary

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

2 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB,

9 7 , 229 (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.,

0 7 , 620 (1966).

4 substantial evidence.”). See also Rodriguez v . Secretary of

Health & Human Services,

1 8 , 222-23 (1st Cir. 1981)

(“We must uphold the [Commissioner’s] findings in this case if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support his conclusion.”).

II. The Parties’ Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act if 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.”

(d)(1)(A). See also 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,

3 7 , 146-47 (1987); Santiago v . Secretary of Health & Human

Services,

, 5 (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,

, 7 (1st Cir. 1982)).

Nevertheless, the claimant is not required to establish a doubt-

5 free claim. The initial burden is satisfied by the usual civil

standard: a “preponderance of the evidence.” See Paone v .

Schweiker,

0 8 , 810-11 (D. Mass. 1982).

If the claimant demonstrates 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 Vazquez v . Secretary of Health & Human Services,

, 2 (1st Cir. 1982). See also

(g) and

416.912(g). 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,

9 8 , 701 (D.N.H. 1982).

In assessing a disability claim, the Commissioner considers

both 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 & Human Services,

9 , 23 (1st Cir. 1986);

Goodermote,

. When determining whether a claimant

6 is disabled, the ALJ is also 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.

. See also

. Ultimately,

a claimant is disabled only if her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.

7 Discussion

I. Background - The ALJ’s Findings.

When the ALJ issued his adverse decision, M s . Pacheco was

forty-three years old. She has a high-school education and her

past relevant work includes jobs as a parimutuel ticket teller,

stock clerk, sales clerk, and nursing assistant.

In concluding that M s . Pacheco was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability. Next, he concluded that

claimant suffers from right hip and low back pain - conditions

that are severe within the meaning of the Act. Admin. Rec. at

16-17. Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 4 0 4 , Subpart P, Appendix 1 . Admin.

Rec. at 1 7 .

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

8 the full range of sedentary work.3 Given that finding, the ALJ

concluded that claimant was capable of returning to her past

relevant work as a parimutuel ticket teller and, therefore, was

not disabled at any time through the date of his decision.

Admin. Rec. at 19-20. The ALJ added that even if claimant did

not have past relevant work to which she could return, given her

age (43) and her education level (high school graduate), the

Medical Vocational Guidelines would direct the conclusion that

she is not disabled.

at 1 9 . Having resolved claimant’s

applications for benefits at step four of the sequential

analysis, there was no need for him to proceed to step five.

2 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”) 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2 , 1996) (citation omitted).

The regulations provide that “[s]edentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.”

(a).

9 II. Weight Ascribed to Treating Physician’s Opinions.

In attacking the ALJ’s determination that she was capable of

performing sedentary work and, therefore, able to return to her

past relevant job at a parimutuel ticket seller, claimant asserts

that the ALJ failed to afford proper weight to the opinions of

her treating physician, D r . Susan M . Hare. Specifically,

claimant says the ALJ should have afforded controlling weight to

Dr. Hare’s observation that claimant was “wheelchair bound” and,

as a result, incapable of many of the essential requirements of

gainful activity. See Admin. Rec. at 196-202.

In discussing the weight that will be ascribed to the

opinions of “treating sources,” the pertinent regulations

provide:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion.

(d)(2). See also SSR 96-2p, Policy

Interpretation Ruling Titles II and XVI: Giving Controlling

10 Weight to Treating Source Medical Opinions,

(July

2 , 1996) (when the ALJ renders an adverse disability decision,

his or her notice of decision “must contain specific reasons for

the weight given to the treating source’s medical opinion,

supported by the evidence in the case record, and must be

sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source’s medical

opinion and the reasons for the weight.”). Importantly, however,

there is no per se rule requiring the ALJ to give greater weight

to the opinion of a treating physician than that of a consulting

physician. See Arroyo v . Secretary of Health & Human Services,

2 , 89 (1st Cir. 1991); Tremblay v . Secretary of Health

& Human Services,

1 , 13 (1st Cir. 1982).

Here, in concluding that claimant could perform the full

range of sedentary work, the ALJ determined that D r . Hare’s

opinions were not entitled to controlling weight. Admin. Rec. at

18-19. As previously noted, D r . Hare’s opinion that claimant is

unable to engage in substantial gainful activity seems to be

based, in substantial measure, upon her belief that claimant is

“wheelchair bound.” See Admin. Rec. at 196, 1 9 7 , 199. But, as

the ALJ pointed out, in the Medical Source Statement D r . Hare

prepared in September of 2007, she failed to identify any

11 “clinical observations or objective reports establishing

[claimant’s] need for a wheelchair.” Admin. Rec. at 1 9 .

Instead, D r . Hare simply provided responses, without explanation,

to a number of multiple-choice questions. And, it is well-

established that a physician’s failure to provide medically-

acceptable clinical and laboratory diagnostic support for his or

her opinions is a legitimate reason for an ALJ to discount those

opinions. See, e.g., Halloran v . Barnhart,

8 , 32 (2d

Cir. 2004). See also Mason v . Shalala,

(3d

Cir. 1993); Frey v . Bowen,

0 8 , 515 (10th Cir. 1987).

Along similar lines, because D r . Hare repeatedly refers to

her as being “wheelchair bound,” claimant suggests that the ALJ

erred in noting that a wheelchair was never prescribed for her.

But, there is plainly a difference between a treating physician’s

observation that a patient is using a wheelchair to provide

greater mobility and a medical finding, based upon clinical

evidence and professional observation, that a wheelchair is

medically necessary. Here, the record simply lacks any evidence

of the latter. Clinical findings and observations concerning

claimant’s neurological status and range of motion in her lower

extremities do not support the conclusion that she was, as a

consequence of her impairments, confined to a wheelchair. See,

12 e.g., Admin. Rec. at 170 (reporting that as of July, 2006 - ten

months after claimant’s alleged onset of disability - claimant

did not require any assistive devices to ambulate). See also

Admin. Rec. at 175-76, Report of D r . Gary Francke, M.D. (Dr.

Francke performed a consultative examination of claimant in

December of 2006, and noted that claimant “does have a good range

of motion at least recumbent of both hips and both knees. There

also appeared to be no instability”); Admin. Rec. at 186,

Physical Residual Functional Capacity Assessment completed by

non-examining physician D r . Hugh Fairley (concluding that “there

is no apparent necessity for ambulatory aid”).

Given the medical evidence of record, it is apparent that

the ALJ did not err is discounting some of the opinions offered

by D r . Hare, and that the ALJ adequately explained his bases for

doing s o . Moreover, there is substantial evidence in the record

to support the ALJ’s conclusion that, notwithstanding D r . Hare’s

observations, M s . Pacheco is not “wheelchair bound” - at least

not as a medical necessity.

13 III. Claimant’s Credibility and Subjective Complaints of Pain.

Next, claimant asserts that the ALJ improperly discounted

her subjective complaints of pain and, by so doing, erred in

calculating her RFC. Specifically, claimant says the ALJ

“fail[ed] to explain how he assessed specific credibility factors

(e.g., non-compliance with treatment, daily activities, effect of

[claimant’s alleged] learning disability on [her ability to

perform tasks associated with her] prior employment).”

Claimant’s memorandum at 7 .

When determining a claimant’s RFC, the ALJ must review the

medical evidence regarding the claimant’s physical limitations as

well as her own description of those physical limitations,

including her subjective complaints of pain. See Manso-Pizarro

v . Secretary of Health & Human Services,

5 , 17 (1st Cir.

1996). When the claimant has demonstrated that she suffers from

an impairment that could reasonably be expected to produce the

pain or side effects she alleges, the ALJ must then evaluate the

intensity, persistence, and limiting effects of the claimant’s

symptoms to determine the extent to which those symptoms limit

her ability to do basic work activities.

[W]henever the individual’s statements about the intensity, persistence, or functionally limiting

14 effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual’s own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . . .

In recognition of the fact that an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individuals’ statements.

SSR 96-7p, Policy Interpretation Ruling Titles II and XVI:

Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual’s Statements,

(July

2 , 1996). Those factors include the claimant’s daily activities;

the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; factors that precipitate and

aggravate the symptoms; the type dosage, effectiveness, and side

effects of any medication the claimant takes (or has taken) to

alleviate pain or other symptoms; and any measures other than

medication that the claimant receives (or has received) for

relief of pain or other symptoms.

See also Avery,

3 ;

(c)(3).

15 It i s , however, the ALJ’s role to assess the credibility of

claimant’s asserted inability to work in light of the medical

record, to weigh the findings and opinions of both “treating

sources” and other doctors who have examined her and/or reviewed

her medical records, and to consider the other relevant factors

identified by the regulations and applicable case law. Part of

his credibility determination necessarily involves an assessment

of a claimant’s demeanor, appearance, and general

“believability.” Accordingly, if properly supported, the ALJ’s

credibility determination is entitled to substantial deference

from this court. See, e.g., Irlanda Ortiz,

(holding that 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”).

Here, in reaching the conclusion that claimant’s testimony

concerning the disabling nature of her impairments was not

entirely credible, the ALJ considered, among other things, her

daily activities (as reported in September of 2006, approximately

one year after her alleged onset of disability, Admin. Rec. at

98-105), in which claimant described her ability to take her son

to work each day, perform household chores, take care of her own

16 dressing and personal hygiene, and her ability to pay bills,

count change, and manage both a savings and checking account.

Among other things, the ALJ noted that:

the claimant has also alleged that she has difficulty making change due to learning difficulties, but this is inconsistent with her report that she did work successfully as a mutual ticket teller. It is also inconsistent with her self-report that she manages her own savings and checking accounts (Exhibit 2 E , p . 4 ) . She also testified that she leaves her home only one time per month, but this is inconsistent with her written statement provided in September 2006 in which she admits to taking her son to work each day, going to Dunkin Donuts each day and attending the dog track one time per week (Exhibit 2 E ) . The claimant also described activities at that time which included doing crafts every day. These activities are consistent with the ability to perform a full range of at least sedentary work.

Admin. Rec. at 1 9 .

In light of the foregoing, the court cannot conclude that

the ALJ erred in making his assessment of claimant’s credibility.

To be sure, there is substantial evidence in the record

supportive of claimant’s assertion that she experiences

significant pain and has difficulty walking. Importantly,

however, there is also substantial evidence in the record to

support the ALJ’s conclusion that she remains capable of

performing sedentary work and, therefore, is not totally

17 disabled. In such circumstances - when substantial evidence can

be marshaled from the record to support either the claimant’s

position or the Commissioner’s decision - this court is obligated

to affirm the Commissioner’s finding of no disability. See

Tsarelka,

(“[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.”); Andrews v . Shalala,

(9th Cir.

1995) (“We must uphold the ALJ’s decision where the evidence is

susceptible to more than one rational interpretation.”); Gwathney

v . Chater,

, 1045 (8th Cir. 1997) (“We must consider

both evidence that supports and evidence that detracts from the

[Commissioner’s] decision, but we may not reverse merely because

substantial evidence exists for the opposite decision.”)

(citation and internal punctuation omitted).

Conclusion

Having carefully reviewed the administrative record

(including M s . Pacheco’s hearing testimony) 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 at

any time prior to the date of his decision. Both the ALJ’s

18 credibility determination and the weight he ascribed to the

opinions of D r . Hare are adequately reasoned and well-supported

by substantial documentary evidence.

The question before this court is not whether it believes

claimant is disabled and entitled to benefits. Instead, the

question presented is far more narrow: whether there is

substantial evidence in the record to support the ALJ’s decision.

There i s . Consequently, while there is certainly substantial

evidence in the record demonstrating that claimant experiences

pain and has difficulty walking, the existence of that evidence

is not sufficient to undermine the ALJ’s decision, which is also

supported by substantial evidence.

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

decision of the Commissioner (document n o . 9 ) is denied, and the

Commissioner’s motion to affirm his decision (document n o . 10) is

granted. The Clerk of the Court shall enter judgment in

accordance with this order and close the case.

19 SO ORDERED.

c ——- Steven J . McAuliffe Jnited States District Judge

February 2 4 , 2009

cc: Raymond J. Kelly, Esq. T . David Plourde, Esq.

20