Dubois v. Astrue CV-11-283-JL 6/20/12

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Raymond Dubois

v. Civil N o . 11-cv-263-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the denial of Raymond Dubois’s

application for Social Security benefits. See

(g). An administrative law judge (“ALJ”) found that Dubois,

though suffering from severe impairments of tibial tendinitis and

bilateral pes planus, was not disabled because he retained the

residual functional capacity to perform light work, including his

past relevant work as a telemarketer. See

(e)-(f), 416.920(e)-(f).

Dubois has moved for an order reversing that decision, see

L.R. 9.1(b)(1), arguing that the ALJ’s findings were not

supported by substantial evidence. The Commissioner of the

Social Security Administration (“SSA”) has cross-moved for an

order affirming that decision, see L.R. 9.1(d), arguing to the

contrary. This court has subject-matter jurisdiction under

(g) (Social Security). After reviewing the

administrative record, the parties’ joint statement of material facts, and their respective memoranda, the court concludes that

the ALJ’s findings were supported by substantial evidence in the

record. The court accordingly denies Dubois’s motion and grants

the Commissioner’s motion.

I. Applicable legal standard

This court’s review under § 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v .

Chater,

1 , 35 (1st Cir. 1999). The ALJ is responsible

for determining issues of credibility, resolving conflicting

evidence, and drawing inferences from the evidence in the record.

See Rodriguez v . Sec’y of Health & Human Servs.,

1 8 ,

222 (1st Cir. 1981). If the ALJ’s factual findings are supported

by substantial evidence in the record, i.e., “such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion,” Richardson v . Perales,

(1971)

(quotations omitted), they are conclusive, even if the court does

not agree with the ALJ’s decision and other evidence supports a

contrary conclusion. See

(g); Tsarelka v . Sec’y

of Health & Human Servs.,

(1st Cir. 1988). The

ALJ’s findings are not conclusive, however, if they were “derived

2 by ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen, 172 F.3d at 3 5 .

II. Background

Pursuant to this court’s local rules, the parties filed a

Joint Statement of Material Facts (document n o . 1 4 ) , which is

part of the record reviewed by the court. See LR 9.1(d). This

court will briefly recount the key facts and otherwise

incorporates the parties’ joint statement by reference.

In August 2009, Dubois, who was 58 years old at the time,

filed applications for a period of disability, disability

insurance benefits and supplemental security income. He claimed

that, as of April 1 , 2009, he suffered from arthritis,

tendinitis, and diabetic neuropathy that limited his ability to

stand and caused him severe pain. Admin. R. at 167. Those

conditions, Dubois said, had forced him to reduce his work to a

part-time schedule and, because they continued to worsen, would

likely cause him to stop working entirely. Id.

The SSA initially denied Dubois’s applications on October

2 3 , 2009, after determining that his condition was not severe

enough to prevent him from working. Id. at 6 0 , 69-74; see also

id. at 184. Dubois appealed that decision to the ALJ, see

generally

et seq., who held a hearing on

3 Dubois’s application on January 4 , 2011. Prior to the hearing,

Dubois submitted a number of medical records pre- and postdating

the alleged onset of his disability, as well as notarized

statements from several of his acquaintances who attested to a

decline in his physical condition. At the hearing, Dubois

testified to his previous work history and the nature of his

medical complaints. A vocational expert engaged by the SSA also

appeared and testified at the hearing.

The record evidence showed that Dubois began to experience

back pain in late 2006 and was diagnosed with acute, mild lumbar

facet syndrome. See generally Admin. R. at 225-43. A little

over a year later, in November 2007, Dubois began complaining of

foot pain and was initially diagnosed with plantar fasciitis.

Id. at 339-40. That pain continued to increase, and in June

2008, Dubois was diagnosed with tibialis tendinitis and pes plano

valgus.1 Id. at 320-24. Though Dubois’s podiatrist warned him

of the danger of deformity and disability at that time, and

instructed him to modify his shoes and obtain arch supports, id.

at 323, Dubois still had not obtained supportive insoles by

September of that year. See id. at 308.

1 Pes plano valgus is more commonly known as flat feet. See Dorland’s Illustrated Medical Dictionary 1441 (31st ed. 2007).

4 Dubois continued to complain of foot pain in 2009. He

reported to his primary care provider that he always experienced

some pain in his feet, but that the pain increased if he was

standing. Id. at 284. On March 1 0 , 2009, Dubois’s podiatrist

opined that his tibialis tendinitis had deteriorated. Id. at

282. In late April 2009 (after Dubois’s alleged onset of

disability), however, Dubois reported that his foot pain was a “2

out of 10,” and his podiatrist opined that his tibialis

tendinitis had improved, and that his right tendinitis was

“improving with arch support.” Id. at 280.

Notwithstanding that supposed improvement, Dubois continued

to complain of foot and leg pain throughout 2009 and into 2010.

See, e.g., id. at 2 6 8 , 421-23, 427-29. He was referred to

physical therapy, id. at 4 1 4 , which, in April 2010, revealed that

Dubois had a stand tolerance of “~ 2 hrs. - 2 ½ hrs.” and that,

although he had gotten stronger, his functioning was still

limited. Id. at 437. In August 2010, Dubois’s podiatrist opined

that he “would benefit from [a] brace and modification of work

activity to less than 3.5 hours weightbearing in one work

period.” Id. at 395-96. The podiatrist therefore prescribed a

pair of Arizona braces for Dubois, id. at 3 8 1 , 443, which Dubois

maintained he was unable to obtain because of their cost. See

id. at 222.

5 At the hearing in January 2011, Dubois testified to the

subjective effects of his medical conditions, including the

limitations they imposed on him. Dubois testified that he had

serious concerns about whether he would be able to stand due to

his foot and leg problems. Id. at 37-38. According to Dubois,

he began noticing foot pain if standing “for like ten minutes or

so . . . but it progressively gets worse as I’m standing and if I

stand for like three or four hours, afterwards I am in extreme

pain.” Id. at 4 0 . Dubois speculated that he would not be able

to perform a job where he sat and stood alternately in one-hour

increments “because it’s too soon to be back to standing after

standing for a whole hour and have to come back to doing it.”

Id. Dubois testified that after a three- or four-hour shift at

work, he would be “really wiped” and would “[f]requently lay

down” after arriving home. Id. at 4 6 . Dubois further testified

that he often had to go to the bathroom in the middle of the

night and was suffering from a sleeping disorder, and that the

combination of these latter two problems caused him to doze off

if seated for a length of time. Id. at 3 8 .

Dubois also testified about the requirements of his then-

current part-time job as a convenience store cashier and his

previous job as a telemarketer. Dubois’s prior job as a

telemarketer was done primarily while seated, and required him to

6 get up only occasionally. Id. at 33-34. He was required to lift

40-60 pound boxes of mailings about once a month, and would also

occasionally lift about ten pounds. Id. at 34-35. Dubois

further testified that in his job as a cashier, he had become

incapable of stocking shelves, and therefore primarily worked at

the register. Id. at 3 0 . Because “company policy” required him

to stand while at the register, his limitations meant that only

very few shifts were available to him. Id. at 30-31.

The vocational expert characterized Dubois’s convenience

store job, as he was performing it at the time of the hearing, as

a “cashier II” job, which constituted light, unskilled work. Id.

at 4 9 . She characterized the telemarketer job as Dubois

performed it as primarily sedentary, but occasionally rising to

the medium level. Id. As regards the cashier II job, she

testified that there are many such jobs in the general economy

that allow a cashier to sit or stand at will. Id. at 5 1 . She

further testified that a person who could perform “light exertion

work with maximum standing and walking only an hour per day”

could work at a telemarketing job as generally performed. Id.

The ALJ later issued a written decision finding that Dubois

met the insured status requirements of the Social Security Act,

had not engaged in substantial gainful activity since his alleged

onset of disability, and suffered from severe impairments of

7 tibial tendinitis and bilateral pes planus.2 Id. at 9-10. The

ALJ also found, however, that these impairments did not meet or

equal an impairment listed in the Social Security regulations,

and that Dubois retained the residual functional capacity3 to

perform light work, “except he can sit or stand alternatively at

will with maximum standing and or walking for 3 hours per workday

in increments of no more than one to one and one half hours,” and

also had other restrictions preventing him from performing the

full range of light work. Id. at 1 0 . In making this finding,

the ALJ noted that Dubois’s “statements concerning the intensity,

persistence and limiting effects of [his] symptoms” were not

entirely credible. Id. at 1 1 . Based upon these findings, the

ALJ concluded that Dubois was capable of performing his past

relevant work as a telemarketer, which generally required only

sedentary exertion. Id. at 1 3 . As a result, the ALJ concluded

2 The ALJ found that other of Dubois’s impairments--diabetes, sleep apnea, back condition, and vertigo--were non-severe, as there was “no evidence that they cause more than mild limitations in the claimant’s ability to perform basic work activities.” Admin. R. at 1 0 ; see

(c), 416.920(c). 3 “Residual Functional Capacity” is defined as “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Social Security Ruling (“SSR”) 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

, at *1 (S.S.A. 1996)

8 that Dubois was not disabled as defined by the Social Security

Act.

The ALJ’s decision was selected for review by the Decision

Review Board (“DRB”). See

et seq. The DRB,

however, failed to complete its review during 90-day period

allotted by

(a)(2), making the ALJ’s decision

the final decision of the SSA. Admin. R. at 1 . Dubois filed

this appeal on February 1 8 , 2011.

III. Analysis

A five-step process is used to evaluate an application for

social security benefits.

(a)(4),

416.920(a)(4). The claimant bears the burden, through the first

four steps, of proving that he is disabled, i.e., that (1) he is

not engaged in substantial gainful activity; (2) he has a severe

impairment; (3) the impairment meets or equals a specific

impairment listed in the Social Security regulations; and (4) the

impairment prevents or prevented him from performing past

relevant work. Id.; see Freeman v . Barnhart,

(1st Cir. 2001). At the fifth step, the SSA bears the burden of

showing that the claimant has the residual functional capacity to

perform other work that may exist in the national economy.

Freeman,

; see

(a)(4)(v),

9 416.920(a)(4)(v). “[A]ll five steps are not applied to every

applicant, as the determination may be concluded at any step

along the process.” Freeman,

.

In the present case, the ALJ denied Dubois’s application at

step four, concluding that Dubois’s medically determinable

impairments did not prevent him from performing his past relevant

work as a telemarketer, as Dubois was still capable of performing

light work with some modifications. Dubois challenges that

conclusion, arguing that there is insufficient evidence in the

record to support the ALJ’s findings that (a) he could perform

light work, (b) his description of the disabling effects of his

conditions were not credible, and (c) he could perform his past

relevant work as a telemarketer. After careful review of the

record and the parties’ submissions, the court affirms the ALJ’s

decision.

A. Dubois’s ability to perform light work

Dubois first argues that the ALJ’s finding that he was

capable of performing light work is not based on substantial

evidence, and, in fact, contradicts the record evidence. He

cites the opinion of Barry Frank, his treating podiatrist, who

examined Dubois on August 2 4 , 2010. See Admin. R. at 395-96.

Following that examination, D r . Frank wrote out a prescription

slip stating that Dubois should “limit work related activity to 3

10 ½ hours daily as needed for foot pathology chronic.” See id. at

381, 383. Dubois argues that the ALJ should have taken this

statement “at face value” and concluded that D r . Frank meant that

Dubois was limited to working no more than three and one-half

hours per workday. Were Dubois in fact so limited, that would

necessarily render him disabled, because “[u]nder the applicable

guidelines, an individual who is unable to work a 40-hour

workweek is considered disabled.” Mitchell v . Astrue,

(citing SSR 96-8p); see n.3 supra.

Rather than assuming that D r . Frank meant to impose such a

limitation, though, the ALJ viewed the prescription slip in

conjunction with D r . Frank’s notes from the same day, which

stated that Dubois “would benefit from . . . modification of work

activity to less than 3.5 hours weightbearing in one work

period.” Id. at 395-96. In light of this statement, the ALJ

inferred that the prescription slip “was intended for the

claimant’s employer, who required the claimant to stand for the

duration of his shift.” Id. at 1 2 . He further noted that “the

inclusion of the words ‘as needed for chronic foot pathology’ [in

the slip] tends to indicate that this restriction would only

apply to work requiring the claimant to be on his feet.” Id.

“[C]onsidering the intended audience of this note, and the more

specific wording in the medical notes,” the ALJ concluded that

11 “Dr. Frank did not intend to limit the claimant’s sitting

capacity.” Id.

Dubois suggests that the ALJ should have read the

prescription slip in isolation, essentially ignoring the notes

that D r . Frank took on the same day. This argument is not

persuasive. An ALJ must “fully account[] for the context of

materials.” Reddick v . Chater,

(9th Cir.

1998); see also, e.g., Shaw v . Astrue,

. Nor

is the court persuaded that the ALJ should have contacted D r .

Frank to clarify his opinion, as Dubois argues was necessary

under the Social Security regulations providing that the SSA will

recontact a medical source “when the report contains a conflict

or ambiguity that must be resolved.”

(e)(1), 416.912(e)(1). Here, any ambiguity in D r .

Frank’s opinion that Dubois should limit his “work related

activity” to three and one-half hours per day is eliminated when

that opinion is viewed in its proper context; as the ALJ

concluded, that context makes clear that the “work related

activity” D r . Frank was concerned with was “weightbearing”--i.e.,

standing or walking--work activity. See Admin. R. at 395-96. In

other words, read in context, D r . Frank’s overall opinion was not

12 sufficiently ambiguous to require any additional record

development by the ALJ.4

Dubois also argues that the ALJ’s finding that he could

perform less than the full range of light work is necessarily

inconsistent with the finding that he could stand and/or walk a

maximum of three hours per day, as “a good deal of walking or

standing” is “the primary difference between sedentary and most

light jobs.” See SSR 83-10, Titles II and XVI: Determining

4 Even assuming that D r . Frank’s opinion was ambiguous, this court would be reluctant to ascribe any error to the ALJ. As the Commissioner notes, Dubois’s own attorney apparently interpreted Dr. Frank’s notes in the same way as the ALJ, asking the vocational expert at the hearing:

Is it vocationally significant for the jobs of convenience cashier and convenience cashier II that the claimant have more than 3.5 hours of standing per day. In other words if like D r . Frank said, all he could stand was 3.5 hours during the day, could he perform either the convenience cashier checker or the convenience cashier II?

Admin. R. at 53 (emphasis added). “When a claimant is represented, the ALJ should ordinarily be entitled to rely on claimant’s counsel to structure and present the claimant’s case in a way that claimant’s claims are adequately explored.” Faria v . Comm’r of Soc. Sec.,

(1st Cir. 1998) (unpublished) (citation and internal quotation marks omitted); see also Sears v . Bowen,

9 4 , 402 (7th Cir. 1988)(“[A]n ALJ is entitled to presume that claimant represented by counsel in the administrative hearings has made his best case.”). Where Dubois’s own counsel did not contend at the hearing that any further record development was necessary, and apparently endorsed the same reasonable reading of D r . Frank’s notes that the ALJ later adopted, the court does not believe the ALJ should have independently seized upon and pursued another possible reading.

13 Capability to Do Other Work -- The Medical-Vocational Rules of

Appendix 2 ,

, *5 (S.S.A. 1983). The court is not

persuaded by this argument, which is virtually identical to an

argument advanced and rejected in Putnam v . Astrue,

.

There, the claimant argued that the ALJ’s finding that he could

perform light work was inconsistent with the finding that he

could stand and walk up to one hour per day.

at 1 0 . Judge

McAuliffe declined to accept this argument, noting that although

the ability to stand and walk only one hour per day made it clear

that the claimant could not perform the full range of light work,

a “claimant’s inability to perform the full range of light work

does not compel the conclusion that he is only capable of less

physically demanding (i.e., sedentary) work.” Id. at 10-11. The

court agrees with that conclusion. Indeed, the same Social

Security Ruling cited by Dubois recognizes that not all light

work requires “a good deal of walking or standing,” and that a

job may fall into the category of light work “when it involves

sitting most of the time.” SSR 83-10,

at * 5 . In

this case, the record evidence amply supports the ALJ’s

conclusion that Dubois was capable of working at a light

14 exertional level with some restrictions, including that he could

stand and/or walk a maximum of three hours per day.5

B. The ALJ’s credibility determination

Dubois next argues that the ALJ failed to sufficiently

support the finding that Dubois’s subjective descriptions of his

limitations were not entirely credible. In making that finding,

the ALJ took into account a number of factors: the “minimal

clinical support for the claimant’s allegations of total

disability”; “noncompliance with treatment on the claimant’s

part,” which the ALJ considered an indication “that the

claimant’s conditions are not as severe as his testimony would

otherwise suggest”; and “the claimant’s activities of daily

living,” which the ALJ also believed to be “inconsistent with a

finding of total disability.” Id. at 11-12. Each of those

5 This conclusion aside, Dubois’s argument that his walking and standing restrictions rendered him unable to perform light work suffers from an even more fundamental problem. As the ALJ noted in his written decision, Dubois’s past relevant work as a telemarketer required only sedentary exertion. See Admin. R. at 1 3 . Thus, even if Dubois was able to perform only sedentary work due to his walking and standing restrictions, as he argues, that could not have prevented him from performing his past relevant work. Similarly, although the court does not agree with Dubois that the ALJ failed to account for a rehabilitation record showing that his “stand tolerance” was two to two and one-half hours, even if the ALJ had concluded that Dubois could stand no more than that in an eight-hour workday, that would not have prevented Dubois from performing his past relevant work as a telemarketer, either.

15 findings is supported by substantial evidence, and is therefore

entitled to deference.6 See Frustaglia v . Sec’y of HHS,

(1st Cir. 1987).

With respect to the ALJ’s finding that there was minimal

clinical support for Dubois’s allegations of total disability,

Dubois points out that the ALJ’s written report incorrectly

states that he maintained “full range of motion” in his lower

extremities “[t]hrough the entire period.” Admin. R. at 1 1 . In

fact, Dubois’s medical records indicate that on two occasions in

June and July 2010, he exhibited a mildly decreased range of

motion--once in both ankles, see

at 4 0 4 , and later only in

his right ankle, see id. at 399. This oversight, however, does

not undermine the ALJ’s ultimate conclusion. Apart from these

two instances, Dubois identifies no other medical records

indicating a reduction in his range of motion, and in fact, by

his next two doctor’s visits in October and November 2010, Dubois

was again exhibiting “normal [range of motion] and strength” in

6 Dubois does not appear to contend that, in evaluating his credibility, the ALJ either failed to apply or misapplied the factors for evaluating a claimant’s subjective complaints of pain set forth in Avery v . Secretary of HHS,

9 , 28-29 (1st Cir. 1986), and later modified in expanded in SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements,

, *3 (S.S.A. 1996). The court therefore does not address those factors in detail, though they guided the ALJ’s assessment of Dubois’s credibility.

16 his lower extremities, with “no joint enlargement or tenderness.”

at 3 8 7 , 390. Nor does Dubois identify any medical records

contradicting the ALJ’s observations that he maintained full

strength and full sensation in his lower extremities, exhibited

no neurological deficits, and was prescribed only NSAIDs for his

condition. Although Dubois does identify medical records

demonstrating “abnormal findings” concerning his back, leg,

ankle, and foot pain, the ALJ reasonably could have concluded

that those findings, while exhibiting an impairment, did not

substantiate Dubois’s claims of total disability.

The ALJ’s observation that Dubois had not complied with his

providers’ recommendations for treatment also finds support in

the record. Though Dubois’s treating podiatrist informed him on

June 3 , 2008, that he “[n]eed[ed] to modify [his] shoes and

obtain OTC arch supports,” and warned him of “potential deformity

and disability” if he did not, id. at 323, Dubois had not

obtained supportive insoles by the time of a follow-up

appointment in September of that year, see id. at 3 0 8 , nor had he

done so by March 2009, see id. at 282. Dubois ignores this

evidence, instead arguing that the ALJ impermissibly relied on

his failure to obtain Arizona braces that had been prescribed for

him in August 2010 by the time of the hearing in January 2011.

Id. at 1 2 ; see id. at 3 8 1 , 396. Pursuant to SSR 96-7p, Dubois

17 says, the ALJ should not have drawn any inference about his

credibility “from [his] failure to seek or pursue regular medical

treatment without first considering” his explanation that he was

not able to afford Arizona braces. SSR 96-7p,

at

*7-8; see Admin. R. at 222. The ALJ was not bound to accept that

explanation, however, and in light of Dubois’s earlier failure to

follow his podiatrist’s recommendation that he obtain supportive

insoles, the ALJ could reasonably have rejected that explanation

in favor of the alternative explanation that Dubois’s conditions

were not quite so severe as he claimed. C f . Berger v . Astrue,

(7th Cir. 2008) (sustaining ALJ’s credibility

determination, which was based in part on claimant’s failure to

pursue treatment, even though “much of [claimant’s] failure to

pursue treatment [could] be explained by his lack of insurance

coverage or money to foot the bills”).

Finally, the ALJ’s finding that Dubois’s daily activities

are inconsistent with total disability is supported by record

evidence. As the ALJ observed, Dubois continued to work part-

time at a job that required him to remain standing at all times,

which is “strong evidence” that Dubois could remain standing for

at least three hours per day in a normal workday. Admin. R. at

12. And, as the ALJ also observed, in applying for benefits,

Dubois reported that he was able to prepare meals for himself,

18 perform housework, use public transportation, go shopping, and

engage in leisure activities with friends.

Among other

things, Dubois reported that he played guitar and surfed the

internet on a daily basis, and that he had experienced no changes

in those activities as a result of his disability. Id. at 178.

Based upon this evidence, the existence of which Dubois does not

contest, the ALJ could have concluded that Dubois’s claims of

total disability were not credible. See Berger,

(evidence that claimant continued to work on a part-time basis

and engaged in non-work household activities “cut[] against his

claim that he was totally disabled” and “indicate[d] that [he]

could perform sedentary work and was not rendered entirely

immobile”).

The two District of Massachusetts cases upon which Dubois

relies, Dedis v . Chater,

(D. Mass. 1997), and

Rohrberg v . Apfel,

(D. Mass. 1998), are not

to the contrary. In Dedis, the court actually sustained the

ALJ’s credibility determination where the claimant testified that

he was “unable to engage in heavy household chores or any of his

former recreational activities.”

4 . Dubois, on

the other hand, was not only capable of performing household

chores, but by his own admission, engaged in recreational

activities on a daily basis with no limitations due to his

19 alleged disability. This also distinguishes him from the

claimant in Rohrberg, who testified that “her ability to run

errands daily . . . was very unpredictable from one day to the

next,” that she could “perform scheduled activities for two

hours” before requiring one and one-half hours of rest, that on

some days “she was fatigued to the point of disorientation, was

too dizzy to drive, would rest most of the day, and was unable

even to pay bills.”

.

Because the ALJ’s factual findings regarding Dubois’s

credibility are supported by substantial evidence in the record,

the court will not disturb them.

C. Dubois’s ability to perform his past relevant work as a telemarketer

Dubois’s final argument is that the ALJ erred in determining

that he retained the residual functional capacity to perform his

past relevant work as a telemarketer. Dubois asserts that the

ALJ, in making this finding, “relied on the [vocational expert’s]

response to a hypothetical question which fails to include the

limitations supported by the record.”7 In particular, he says,

7 The ALJ’s hypothetical question asked the vocational expert whether Dubois’s past relevant work as a telemarketer and as a convenience store cashier could be performed by someone who could

perform a range of light work in terms of lifting which would allow for sitting or standing alternatively at will with maximum standing and or walking for three

20 the ALJ’s hypothetical question did not “include D r . Frank’s

finding that M r . Dubois is limited to working a maximum of 3.5

hours a day” or Dubois’s alleged need to take a break every 30 to

45 minutes so that he would not fall asleep due to his sleep

disorder. Neither of these supposed deficiencies warrants

reversal of the ALJ’s decision.

First, as discussed in Part III.A, supra, the ALJ’s reading

of D r . Frank’s notes as expressing the opinion that Dubois was

limited to three and one-half hours of weightbearing work per

day, not to three and one-half hours of any work, was supported

by the record. Second, the ALJ ultimately concluded that

Dubois’s sleep disorder did not cause more than a mild

limitation, noting that “the last evidence on record related to

sleep apnea suggests that the claimant’s condition had improved

to the point where he had no significant apneas.” Admin. R. at

12. Dubois testified to the contrary at the administrative

hours per work day? And in increments of no more than an hour or hour and a half at a time with a short change of position. . . . [T]here would be only occasional climbing of stairs with no climbing of ladders. Occasional balancing, occasional stooping and crouching and kneeling with no crawling. Pushing and pulling would be limited to occasional as would operation of foot controls and that’s bilaterally. . . . [T]here wold be no exposure to unprotected heights as well as dangerous moving machinery.

Admin. R. at 49-50.

21 hearing, claiming that he would fall asleep if seated for any

length of time, id. at 3 8 , but, as already noted, see Part III.B,

supra, the ALJ was justified in not crediting Dubois’s subjective

descriptions of the limitations posed by his disorders.

Accordingly, the ALJ did not err in relying upon the vocational

expert’s answer to a hypothetical question that did not include

those “limitations.”

IV. Conclusion

Pursuant to sentence four of

(g), Dubois’s

motion to reverse and remand the Commissioner’s decision8 is

DENIED. The Commissioner’s motion to affirm the decision9 is

GRANTED. The Clerk of Court is directed to enter judgment in

accordance with this order and close the case.

SO ORDERED.

__ Joseph N. Laplante ___ Unj/ted States District Judge Dated: June 2 0 , 2012

cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.

8 Document n o . 8 . 9 Document n o . 1 1 .

22