Guerin v . SSA 10-CV-421-SM 6/24/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Roger D. Guerin, Claimant

v. Civil N o . 10-cv-421-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), Roger Guerin moves to

reverse the Commissioner’s decision denying his application for

Social Security Disability Insurance Benefits under Title II of

the Social Security Act. See

. The Commissioner

objects and moves for an order affirming his decision. For the

reasons discussed below, Guerin’s motion is denied, and the

Commissioner’s motion is granted.

Factual Background

I. Procedural History.

In December of 2007, while shoveling snow at work, Mr.

Guerin fell and severely sprained his left achilles tendon and

ankle. Approximately eight months later, he filed an application

for Disability Insurance Benefits, alleging that he had been unable to work since that accident, due to pain in his knee,

feet, and ankles. He also claimed he suffered from symptoms of

complex regional pain syndrome, as well as lower back pain. His

application was denied both initially and by a Federal Reviewing

Official. Guerin then requested a hearing before an

Administrative Law Judge (“ALJ”).

On March 2 , 2010, the ALJ held a hearing by video

conference, at which Guerin, his attorney, and a vocational

expert appeared. Approximately six weeks later, the ALJ issued

her written decision, concluding that Guerin retained the

residual functional capacity to perform the physical and mental

demands of a range of sedentary work. Although Guerin’s

limitations preclude him from performing any of his past relevant

jobs, the ALJ concluded that there was still a significant number

of jobs in the national economy that he could perform.

Accordingly, the ALJ determined that Guerin was not disabled, as

that term is defined in the Act, at any time prior to the date of

her decision.

The Decision Review Board selected the ALJ’s decision for

review, but was unable to complete that review during the time

allowed. Accordingly, the ALJ’s denial of Guerin’s application

2 for benefits became the final decision of the Commissioner,

subject to judicial review. Subsequently, Guerin filed a timely

action in this court, asserting that the ALJ’s decision is not

supported by substantial evidence and seeking a judicial

determination that he is disabled within the meaning of the Act.

He then filed a “Motion for Order Reversing Decision of the

Commissioner” (document n o . 7 ) . In response, the Commissioner

filed a “Motion for Order Affirming the Decision of the

Commissioner” (document n o . 1 0 ) . Those motions are pending.1

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.

1 Although the parties do not discuss the issue, it appears that Guerin’s application for Disability Insurance Benefits was originally approved, and he was found to have been disabled by reason of depression as of May 1 , 2008. Admin. Rec. at 5 6 . Subsequently, however, the Commissioner determined that his depression was not severe and benefits were denied. See

at 6 1 , 104-06. In short, the Commissioner concluded that there was insufficient evidence “to assess the likely duration of the mental impairment, especially in light of the absence of ongoing therapy.”

. See also

(case analysis and Medical Consultant’s Review of Psychiatric Review Technique Form).

3 Standard of Review

I. “Substantial Evidence” and Deferential Review.

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 and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g). See

also Irlanda Ortiz v . Secretary of Health & Human Services,

(1st Cir. 1991). Consequently, provided the ALJ’s

findings are properly supported, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. See, e.g., Tsarelka v .

Secretary of Health & Human Services,

(1st Cir.

1988); Rodriguez v . Secretary of Health & Human Services,

(1st Cir. 1981).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison C o . v . NLRB,

(1938). It is something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from

4 the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v . Federal

Maritime Comm’n.,

(1966). See also Richardson

v . Perales,

(1971).

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 which 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

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert,

(1987); Santiago v .

Secretary of Health & Human Services,

, 5 (1st Cir.

1991). To satisfy that burden, the claimant must prove, by a

preponderance of the evidence, that his impairment prevents him

from performing his former type of work. See Gray v . Heckler,

(1st Cir. 1985); Paone v . Schweiker,

(D. Mass. 1982). If the claimant demonstrates

an inability to perform his previous work, the burden shifts to

the Commissioner to show that there are other jobs in the

5 national economy that he can perform. See Vazquez v . Secretary

of Health & Human Services,

, 2 (1st Cir. 1982). See

also

(g).

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 v . Secretary of Health & Human Services,

, 6

(1st Cir. 1982). When determining whether a claimant 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.

6

. 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, 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.

(d)(2)(A).

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

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

decision.

Discussion

I. Background - The ALJ’s Findings.

In concluding that Guerin was not disabled within the

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

step sequential evaluation process described in

. Accordingly, she first determined that Guerin had

not been engaged in substantial gainful employment since his

alleged onset of disability: December 3 , 2007. Admin. Rec. at

13. Next, she concluded that Guerin suffers from the following

7 severe impairments: “complex regional pain syndrome,

osteoarthritis of the left ankle, degenerative disc disease of

the lumbar spine, and an affective disorder.”

at 1 4 .

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 404, Subpart P, Appendix 1 .

Next, the ALJ concluded that Guerin retained the residual

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

sedentary work.2 She noted, however, that Guerin cannot perform

jobs that involve the use of “ladders, rope or scaffolds; he may

not have access to unprotected heights; he may not use foot

controls with his lower extremities; and he is limited to simple

routine tasks.”

at 1 5 . In light of those restrictions, the

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).

8 ALJ concluded that Guerin was not capable of returning to any of

his prior jobs, most of which were performed at either the heavy

or medium exertional level.

at 1 8 .

Finally, the ALJ considered whether there were any jobs in

the national economy that Guerin might perform. Using the

Medical-Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P, App.

2 , tables 1-3, (also known as the “Grid”), as a framework, the

ALJ concluded that Guerin’s exertional limitations had “little to

no impact on his unskilled sedentary occupational base.” Id. at

19. Consequently, the ALJ concluded that Guerin was not

“disabled,” as that term is defined in the Act, at any time from

his alleged onset date through the date of her decision.

In support of his motion to reverse the ALJ’s adverse

disability finding, Mr. Guerin advances four claims: (1) the ALJ

erred in concluding that his impairments do not meet or equal a

listed impairment; (2) the ALJ erred in calculating his residual

functional capacity; (3) the ALJ erred in finding that his

assertions of disabling pain were not entirely credible and (4)

the ALJ’s overall disability determination is not supported by

substantial evidence. None has merit.

9 II. Listed Impairments.

Guerin challenges the ALJ’s determination that he does not

have an impairment (or combination of impairments) that meets or

medically equals one of the listed impairments in 20 C.F.R. Part

404, Subpt. P, App. 1 . Specifically, Guerin says that because he

is not able to ambulate effectively, his complex regional pain

syndrome and osteoarthritis of the left ankle combine to meet

listing 1.02 (“Major dysfunction of a joint”).

Under the relevant regulations, such an impairment is

characterized by:

gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints . . . . [w]ith involvement of one major peripheral weight-bearing joint (e.g., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. Part 404, Subpt. P, App. 1., § 1.02. The “inability to

ambulate effectively” means:

an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities. Ineffective

10 ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.

20 C.F.R. Part 404, Subpt. P, App. 1., § 1.00B2b (emphasis

supplied).

There i s , to be sure, evidence in the record that Guerin

does have some difficulty walking and has an altered or “an

antalgic gait” - particularly in the weeks immediately following

his injury. But, that evidence is not sufficient to warrant the

conclusion that he has the sort of “extreme limitation of the

ability to walk” that is required. More importantly, there is

substantial evidence in the record to support the ALJ’s

conclusion that Guerin’s impairments are not sufficiently severe

to meet or equal a listed impairment. See, e.g., Admin. Rec. at

153 (three months after his ankle sprain, Guerin reports he is

able to “walk with greater ease,” “function fairly well at home,”

and “was able to use his snowblower today”). See also Id. at 192

(“Mr. Guerin is able to sit frequently as well as stand, walk,

climb and descend stairs”); 256 (“gait fairly normal”); 263

(same); 338 (“sometimes he can walk a mile, sometimes it is

less”); 367-68 (Guerin “is walking daily, about 15-20 minutes,”

11 and his “station and gait [are] normal”); 380 (“full joint

motion, no deformities; slow ROM of the ankle, but able to flex

and extend as well as rotate the ankle; station and gait

normal”); 386 (“station and gait normal”); 629 (workers’

compensation form completed by Guerin’s physical therapist,

concluding that he could lift/carry a maximum of 50 pounds and

return to full-time work “with modification”).

III. Claimant’s Residual Functional Capacity.

Next, Guerin asserts that the ALJ erred in concluding that

he retains the residual functional capacity to perform a range of

sedentary work. In support of his argument, Guerin points to

evidence in the record suggesting that he requires a walking boot

or cane to ambulate, cannot walk for longer than a few minutes,

and, as a result, can perform only limited activities of daily

living. That such evidence exists in the record is undeniable.

It i s , however, of less persuasive value than Guerin asserts.

S o , for example, the references to his use of a walking boot and

cane appear in medical records only weeks after he sprained his

ankle - an unremarkable fact, given that his ankle sprain was

fairly severe. He does not, however, point to any other

references to his long-term (or even subsequent) use of either

assistive device, and his reliance upon such devices appears to

12 have been only temporary. In fact, within a year of Guerin’s

injury, medical records indicate that he was “not using external

walking aids.” Admin. Rec. at 336.

Guerin also points to the report prepared by Dr. Davis

Clark, an orthopedic specialist, who diagnosed Guerin with “left

foot and ankle pain with antalgic gait and limitation of

activities of daily living.” Id. Although Dr. Clark opined that

Guerin “no longer has signs or symptoms of complex regional pain

syndrome,” id., he concluded that, for purposes of Guerin’s

workers’ compensation claim, he suffered from a “7% whole person

impairment based upon an antalgic limp with shortened stance

phase and documented moderate to advanced arthritic changes of

the ankle.” Id.

Even if Dr. Clark opinions are fully credited, it is not

entirely clear that they are inconsistent with the ability to

perform a range of sedentary work. But, assuming those opinions

are inconsistent with the ALJ’s RFC determination, there is

certainly other (substantial) evidence in the record to support

the ALJ’s conclusion that Guerin is capable of performing a range

of sedentary work. For example, the Functional Capacity

13 Evaluation (“FCE”) prepared at approximately the same time as Dr.

Clark’s report concluded:

Mr. Guerin demonstrated the ability to safely lift, carry, push, and pull in the medium strength work category with some abilities in the heavy strength work category. Mr. Guerin demonstrated the use of good body mechanics with all activities requiring strength. Observation of positional tolerance indicates that Mr. Guerin is able to sit frequently as well as stand, walk, climb and descend stairs, stoop moderately, reach forward and above shoulder height, and complete activities requiring finger dexterity occasionally. The client’s current abilities do not support the performance of work which requires balance, crouching, squatting, and kneeling. . . . .

Based on the results of this FCE, Mr. Guerin demonstrated the ability to work in at least the medium strength work category with some abilities in the heavy strength work category. It is recommended that Mr. Guerin explore job opportunities that have the physical demands of light or medium strength work with the primary work position being seated. Based on the results of balancing testing, it is also recommended that he avoid work on slippery, wet, narrow, elevated or erratically moving surfaces.

Admin. Rec. at 192. Based upon observations of Guerin walking

and climbing two flights of ten stairs, it was opined that he

could walk occasionally (up to 1/3 of the work day) as well as

climb stairs occasionally. Id. at 193. Those conclusions are

consistent with, for example, Guerin’s admitted ability to lift

his 50-pound dog, id. at 263, and the ability to operate his

snowblower, id. at 594. See also Id. at 183-90 (non-examining

14 physician’s conclusion that Guerin can perform full-time

sedentary work); 618 (physical therapist’s opinion dated December

1 7 , 2009, that Guerin can return to full-time work, “with

modification,” and lift/carry up to 50 pounds); 629 (same, dated

January 2 7 , 2010); 636 (same, dated March 1 , 2010).

IV. Claimant’s Credibility.

Next, Guerin challenges the ALJ’s conclusion that his

complaints of disabling pain were not entirely credible. When

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

evidence regarding the claimant’s physical limitations as well as

his own description of those physical limitations, including his

subjective complaints of pain. See Manso-Pizarro v . Secretary of

Health & Human Services,

5 , 17 (1st Cir. 1996). When

the claimant has demonstrated that he suffers from an impairment

that could reasonably be expected to produce the pain or side

effects he 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 his ability to

do basic work activities.

[W]henever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must

15 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).

16 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 him and/or reviewed

his medical records, and to consider the other relevant factors

identified by the regulations and applicable case law. Part of

the ALJ’s 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, the ALJ’s conclusion that Guerin’s testimony about the

disabling nature of his impairments was not entirely credible is

supported by, among other things, Guerin’s daily activities; the

activities disclosed on his application for benefits and in the

medical reports; the October 2008 Functional Capacity Evaluation;

and the non-examining physician’s report - all of which are

inconsistent with Guerin’s assertions of disabling pain and

17 alleged inability to lift more than 15 pounds. See Admin. Rec.

at 7 6 . In light of the foregoing, the court cannot conclude that

the ALJ erred in making her assessment of Guerin’s credibility.

V. Substantial Evidence to Support ALJ’s Decision.

Finally, Guerin says the ALJ’s decision is not supported by

substantial evidence, pointing to various aspects of the record

that support his asserted disability and challenging the ALJ’s

decision to rely upon evidence supportive of the contrary view.

As noted above, there is certainly evidence in the record

supportive of Guerin’s assertion that he experiences periods of

significant pain and has some difficulty walking. But, there is

also substantial evidence in the record to support the ALJ’s

conclusion that he remains capable of performing a significant

range of sedentary work and, therefore, is not totally 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

18 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 mot reverse merely because

substantial evidence exists for the opposite decision.”)

(citation and internal punctuation omitted).

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 Mr. Guerin was not

disabled at any time prior to the date on which the ALJ issued

her decision. The ALJ’s determination that Guerin’s impairments

do not meet or medically equal a listed impairment, her

assessment of Guerin’s RFC, and her credibility determination are

well-reasoned and supported by substantial evidence in the

record.

As is the case in most Social Security appeals, the question

before this court is not whether it believes Guerin is disabled

19 and entitled to benefits. Rather, the issue presented is far

more narrow: whether there is substantial evidence in the record

to support the ALJ’s decision - here, her determination that

Guerin retains the ability to perform a substantial range of

sedentary work. There i s . Consequently, while there is

certainly evidence in the record demonstrating that Guerin

suffers from significant ankle/foot pain and has some difficulty

walking, the existence of such evidence is not sufficient to

undermine the ALJ’s determination that he is not disabled within

the meaning of the Act.

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

decision of the Commissioner (document n o . 7 ) 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.

SO ORDERED.

June 2 4 , 2011

cc: Christine W . Casa, Esq. Gretchen L. Witt, Esq.

20