Case 1:11-cv-00323-SM Document 13 Filed 05/23/12 Page 1 of 18

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Leslie Rakip, Claimant

v. Civil N o . 11-cv-323-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,

Leslie Rakip, moves to reverse the Commissioner’s decision

denying her applications for Social Security Disability Insurance

Benefits and Supplemental Security Income Benefits, under Titles

II and XVI of the Social Security Act,

and 1381-

1383c (the “Act”). The Commissioner objects and moves for an

order affirming his decision.

For the reasons discussed below, claimant’s motion is

denied, and the Commissioner’s motion is granted. Case 1:11-cv-00323-SM Document 13 Filed 05/23/12 Page 2 of 18

Factual Background

I. Procedural History.

In 2007, claimant filed applications for Disability

Insurance Benefits and Supplemental Security Income Benefits,

alleging that she had been unable to work since January 1 , 1999.

Her claims were denied, and she requested a hearing before an

Administrative Law Judge (“ALJ”). After reviewing all the record

evidence, the ALJ issued a partially favorable ruling, concluding

that claimant had been disabled since February 1 8 , 2008.

Claimant appealed to this court, seeking a determination that she

was disabled approximately nine years earlier, on January 1 ,

1999. Subsequently, the Commissioner filed an assented-to motion

to remand the matter to the ALJ for further evaluation of

claimant’s mental impairments, in accordance with the special

technique described in

.1520a and 416.920a. The

court (Laplante, C.J.) granted that motion. See Rakip v .

Commissioner, N o . 09-cv-380-JL. The Decision Review Board

vacated the ALJ’s (partially favorable) decision in its entirety

and remanded the matter to the ALJ for further proceedings.

Accordingly, on November 3 0 , 2010, the ALJ conducted another

hearing. Claimant (accompanied by her attorney), an impartial

vocational expert, and an impartial medical expert appeared and

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testified. Approximately two months later, the ALJ issued a

decision denying claimant’s applications for benefits. Once

again, claimant filed a timely appeal to this court, followed by

a “Motion for Order Reversing Decision of the Commissioner”

(document n o . 1 0 ) . In response, the Commissioner filed a “Motion

for Order Affirming the Decision of the Commissioner” (document

no. 1 1 ) . 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 2 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

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

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supported by substantial evidence. See

(g) and

1383(c)(3). See also Irlanda Ortiz v . Secretary of Health &

Human Services,

(1st Cir. 1991). 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

a preponderance of the evidence, so 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). See also Richardson v . Perales,

(1971). 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,

1 8 , 222 (1st Cir.

1981).

II. The Parties’ Respective Burdens.

An individual seeking Social Security benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

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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, by a preponderance of the evidence, that

her impairment prevents her from performing her former type of

work. See Gray v . Heckler,

(1st Cir. 1985);

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).

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

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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). 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.

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

and 416.920. Accordingly, he first determined that

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claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: January 1 , 1999. Admin.

Rec. at 9. Next, he concluded that claimant suffers from the

following severe impairments: depression and anxiety.

at 1 0 .

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 0 . Claimant does not challenge any of those findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform “a full range of work at

all exertional levels, but with the following non-exertional

limitations: the claimant is limited from more than simple

routine tasks requiring minimal public contact.”

at 1 2 .

And, relying upon the testimony of a vocational expert, the ALJ

concluded that, notwithstanding claimant’s non-exertional

limitations, “there are jobs that exist in significant numbers in

the national economy that the claimant can perform.”

at 1 5 .

Consequently, the ALJ concluded that claimant was not “disabled,”

at any time relevant to his decision.

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In support of her motion to reverse the decision of the ALJ,

claimant advances three arguments: first, that the ALJ failed to

give proper weight to the opinions of her treating mental health

counselor; second, that the ALJ failed to properly assess her

subjective complaints of disabling symptoms; and, finally, that

the ALJ’s residual functional capacity assessment was not

supported by substantial evidence.

II. The Treating Provider’s Opinion.

With regard to her first argument in favor of reversing the

ALJ’s adverse disability determination, claimant says:

It is [claimant’s] contention that ALJ Klingebiel failed to fairly and properly weigh the opinion of the [claimant’s] treating clinician. His review of M s . Leppanen Lerner’s opinions failed to conform with the requirements of the Commissioner’s Social Security Ruling (SSR) 06-3p and, as such, it cannot stand.

Claimant’s memorandum (document n o . 10-1) at 7 . The SSR on which

claimant relies discusses the difference between “acceptable

medical sources” and those health care providers who are not

acceptable medical sources, and the weight to which their

respective opinions are entitled.

The distinction between “acceptable medical sources” and other health care providers who are not “acceptable medical sources” is necessary for three reasons.

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First, we need evidence from “acceptable medical sources” to establish the existence of a medically determinable impairment. Second, only “acceptable medical sources” can give us medical opinions. Third, only “acceptable medical sources” can be considered treating sources, whose medical opinions may be entitled to controlling weight.

SSR 06-3p, Considering Opinions and Other Evidence from Sources

Who are not “Acceptable Medical Sources” in Disability Claims,

, at *2 (August 9, 2006) (citations omitted).

While the SSR emphasizes that “information from these ‘other

sources’ cannot establish the existence of a medically

determinable impairment,” it acknowledges that such sources “may

provide insight into the severity of the impairment and how it

affects the individual’s ability to function.”

It also

discusses the factors an ALJ should consider when weighing any

medical opinions, regardless of whether those opinions come from

acceptable or non-acceptable sources, and regardless of whether

they are treating, non-treating, or non-examining sources.

at * 2 - 4 .

Here, the ALJ properly recognized that M s . Leppanen Lerner

is not an “acceptable medical source.” Admin. Rec. at 1 4 . Then,

as required by the regulations and SSR 06-3p, he went on to

explain why he afforded her opinions about the severity of

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claimant’s impairments only “limited weight.” In particular, the

ALJ noted that M s . Leppanen Lerner’s opinions were not well

supported by either her own clinical observations or by other

substantial evidence in the record.

The ALJ’s explanation is well-supported by the testimony of

the medical expert, D r . Koocher.1 D r . Koocher testified about

claimant’s history of mental health treatment, and focused on her

depressive disorder and her anxiety-related disorder. Based upon

his review of claimant’s medical records, he concluded that:

[W]hat we have is the overall picture [of] a young woman who did have significant problems as an adolescent, particularly around age 1 5 . But in the past 10 years, the record seems to consistently document moderate level rather than severe level of impairment, both in the narrative and in the detail that’s provided in the records.

Admin. Rec. at 4 5 . He also explained why both D r . Knight and M s .

Leppanen Lerner “appear to have misunderstood the social security

criteria,” resulting in what D r . Koocher called “a little bit of

1 D r . Gerald Koocher was retained by the Commissioner to review claimant’s medical records, discuss her treatment history, and opine on her ability to function in the workplace. He i s , among other things, a Professor of Psychology and Dean of the School for Health Studies at Simmons College and, since 1981, he has been a Senior Associate in Psychology at Children’s Hospital in Boston. Admin. Rec. at 173-78.

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incongruity,”

at 43 - that i s , their use of medical terms

which overstate (at least in social security context) claimant’s

impairments. Ultimately, D r . Koocher explained why the medical

evidence of record supports the conclusion that claimant falls

“within the moderate level of impairment.” Id. at 45. 2

Having reviewed the administrative record, the court cannot

conclude that the ALJ failed to comply with the requirements of

SSR 06-3p. He recognized that M s . Leppanen Lerner is not an

acceptable medical source, but acknowledged (and complied with)

his obligation to provide an explanation for his decision to give

her opinions only limited weight. And, that decision is more

than adequately supported by both claimant’s record of medical

treatment and the expert testimony of D r . Koocher.

III. Claimant’s Subjective Complaints of Disabling Symptoms.

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

medical evidence regarding the claimant’s physical and/or mental

limitations as well as her own description of those limitations.

2 D r . Koocher also pointed out that claimant’s medical records and treatment history were “slightly out of sync with the checkoffs that were filled out on the RFCs by the treaters. However, the RFCs don’t provide documentation of anything more than moderate impairment.” Admin. Rec. at 4 5 .

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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 symptoms or side effects she alleges, the

ALJ must then evaluate the intensity, persistence, and limiting

effects of those symptoms to determine the extent to which they

limit her 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 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

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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).

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 sources 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”

- factors which, given the nature of its review, this court lacks

the ability to assess. 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]

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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

about the disabling nature of her impairments was not entirely

credible, the ALJ considered the inconsistencies between

claimant’s assertion (in February of 2008) that she was only

working about one hour per week, her testimony at the

administrative hearing that she was working approximately four

hours per week, and her employment records, which showed that she

was working roughly 8 to 20 hours per week during the calendar

years 2008 through 2009. As the ALJ observed, such

inconsistencies in claimant’s testimony (and in forms submitted

in connection with her applications for benefits) shed light on

her overall credibility.

The ALJ also considered the fact that there was no evidence

that claimant’s employer found it necessary to provide her with

any special accommodations or that the work she provided was

worth anything less than what she was being paid. He also noted

that claimant has provided “very significant care for her child,”

Admin. Rec. at 1 4 , which included making frequent trips to Boston

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for various assessments and applying for various grants to assist

with his care. See, e.g., Id. at 596. See also Id. at 277

(claimant’s Function Report, in which she describes her ability

to perform household chores, do grocery shopping, and drive her

son to school); Id. at 596-97 (statement by mental health

counselor Victoria McDonald, observing that claimant’s work in

taking care of her son “seems to require far more effort than a

40 hour week at a job” and noting that claimant “was still unable

to accept that her level of activity is far higher than she

perceives”).

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 her depression and

anxiety make life quite difficult for her. Importantly, however,

there is also substantial evidence in the record to support the

ALJ’s conclusion that she remains capable of performing a range

of 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,

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at 535 (“[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).

IV. The ALJ’s Residual Functional Capacity Assessment.

Finally, claimant asserts that the ALJ erred in concluding

that she retains the functional capacity to perform a full range

of work at all exertional levels, subject to two non-exertional

limitations: that she is limited to performing no more than

simple routine tasks and that her employment can involve only

minimal contact with the public. See Admin. Rec. at 12-13.

According to the claimant:

[T]he ALJ’s analysis of the evidence pursuant to the guidelines set forth in [SSR 96-8p] (and also

, 416.945) was flawed for reasons set forth in her legal argument presented above, i.e., the

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treating clinician’s opinion regarding RFC was not properly weighed and the credibility assessment was flawed. Because of these errors, the RFC assessment cannot be found valid.

Claimant’s memorandum (document n o . 10-1) at 2 4 . But, having

concluded that the ALJ’s assessment of claimant’s credibility and

his decision to discount the opinion of claimant’s mental health

counselor, M s . Leppanen Lerner, are well-supported in the record,

the court cannot conclude that he erred in determining claimant’s

RFC.

Conclusion

Having carefully reviewed the administrative record

(including the testimony of the claimant, the medical expert, and

the vocational expert), as well as the arguments advanced by both

the Commissioner and claimant, 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. His decision to discount the opinions

of claimant’s mental health counselor, his assessment of

claimant’s credibility, and his RFC determination are all

adequately supported by evidence in the record.

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As is always the case in appeals of adverse benefits

eligibility determinations, the court does not determine, de

novo, whether claimant is disabled and entitled to benefits.

This court’s review is far more narrow: Is there substantial

evidence in the record to support the ALJ’s decision? There is.

Consequently, claimant’s motion to reverse the decision of the

Commissioner (document no. 10) is denied, and the Commissioner’s

motion to affirm his decision (document no. 11) 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

May 23, 2012

cc: Raymond J. Kelly, Esq. Gretchen L. Witt, AUSA

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