Montore v . SSA 11-CV-190-SM 8/20/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gregory Montore, Claimant

v. Case N o . 11-cv-190-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,

Gregory Montore, moves to reverse the Commissioner’s decision

denying his application for Social Security Disability Insurance

Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI of the Act.

See

, 1381, et seq. The Commissioner objects and

moves for an order affirming his decision.

Factual Background

I. Procedural History

On February 6, 2009, claimant filed an application for

social security disability insurance benefits (“DIB benefits”) as

well as Supplemental Security Income benefits (“SSI benefits”),

alleging that he had been unable to work since September 5 , 2007. He asserts eligibility for benefits based on disabilities due to

chronic back pain, a mood disorder, bipolar disorder, and

attention deficit disorder. His application for benefits was

denied and he requested an administrative hearing before an

Administrative Law Judge (“ALJ”).

On December 7 , 2010, claimant, his attorney, and an

impartial vocational expert (“VE”) appeared before an ALJ.

Claimant’s sister testified on his behalf. On December 2 3 , 2010,

the ALJ issued his written decision, concluding that claimant was

not disabled. He found that claimant has the residual functional

capacity to perform medium work, with some restrictions. In a

Notice of Decision dated March 2 2 , 2011, the Decision Review

Board (“DRB”) notified claimant that it had considered additional

evidence and the written submission of claimant’s counsel, and

that it had affirmed the ALJ’s decision. Accordingly, the ALJ’s

decision became the final decision of the Commissioner, subject

to judicial review.

Claimant then filed a timely action in this court, appealing

the denial of DIB benefits. Now pending are claimant’s “Motion

for Order Reversing Decision of the Commissioner” (document n o .

2 9 ) ; the Commissioner’s “Motion for Order Affirming the Decision

of the Commissioner” (document n o . 1 2 ) .

II. Stipulated Facts

Pursuant to Local Rule 9.1(d), the parties submitted a Joint

Statement of Material Facts which, because it is part of the

court record (document n o . 1 3 ) , need not be recounted in this

opinion.

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.1 See 42 U.S.C.

1 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).

3 §§ 405(g); 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 substantial evidence.”). See also

Rodriguez v . Secretary of Health & Human Services,

1 8 ,

222 (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.”).

In making factual findings, the Commissioner must weigh and

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

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.” Irlanda Ortiz,

4 (citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly when those

determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services,

9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

II. The Parties’ Respective Burdens

An individual seeking Social Security disability benefits is

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

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or 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

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, claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v . Heckler,

(1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services,

, 7

(1st Cir. 1982)). Nevertheless, claimant is not required to

5 establish a doubt-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 claimant demonstrates an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform.

See Vazquez v . Secretary of Health & Human Services,

,

2 (1st Cir. 1982). See also

(g). If the

Commissioner shows the existence of other jobs that claimant can

perform, then the overall burden to demonstrate disability

remains with 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) claimant’s subjective claims of pain and

disability, as supported by the testimony of claimant or other

witnesses; and (3) claimant’s educational background, age, and

work experience. See, e.g., Avery v . Secretary of Health & Human

Services,

9 , 23 (1st Cir. 1986); Goodermote,

6 at 6. When determining whether a claimant is disabled, the ALJ

is also required to make the following five inquiries:

(1) whether claimant is engaged in substantial gainful activity;

(2) whether claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents claimant from performing past relevant work; and

(5) whether the impairment prevents claimant from doing any other work.

. 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 claimant’s

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

decision.

7 Discussion

I. Background - The ALJ’s Findings

The ALJ concluded that claimant was not disabled. In

reaching his decision, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

. He first determined that claimant had not been

engaged in substantial gainful employment since his alleged onset

of disability. Next, he concluded that claimant has the severe

impairments of chronic back pain, a mood disorder, and attention

deficit disorder. Administrative Record (“Admin. Rec.”) 4 1 .

Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or equal one of the impairments listed

in Part 4 0 4 , Subpart P, Appendix 1 . Id. at 42-3.

Next, the ALJ concluded that claimant retained the residual

functional capacity to perform medium work, except that claimant

is limited to 1-3 step tasks; can make only simple work

decisions; can adapt to only routine changes in the work

environment; requires close supervision; and needs to avoid

directing others. Id. at 4 4 . The ALJ concluded, therefore, that

claimant is unable to perform his past relevant jobs. Id. at 4 6 .

8 Finally, the ALJ considered whether there were any jobs in

the national economy claimant could perform. Relying upon the

testimony of the VE as well as his own review of the medical

record, the ALJ concluded that, notwithstanding claimant’s

limitations, “there were jobs that existed in significant numbers

in the national economy that the claimant can perform,” such as

stuffer, laundry worker, and kitchen helper. Id. at 4 7 .

Consequently, the ALJ concluded that claimant was not

“disabled,” as that term is defined in the Act. Id. Claimant,

therefore, was deemed ineligible for DIB and SSI benefits. Id.

at 4 8 .

II. Severe Impairment of Bipolar Disorder

At Step 2 of his analysis, the ALJ found that claimant

suffers from the severe impairments of “chronic back pain, a mood

disorder and attention deficit hyperactivity disorder.” Admin.

Rec. 4 1 . Claimant alleges the ALJ committed reversible error at

Step 2 in failing to find a severe impairment of bipolar

disorder. The argument is unsupportable.

For one thing, it is not at all clear that the ALJ failed to

recognize claimant’s bipolar disorder as a severe impairment. In

9 his Step 2 analysis the ALJ credited the opinion of the state

agency reviewer, D r . Salt, that claimant has the severe

impairments of “attention deficit hyperactivity disorder” and an

“affective disorder.” Id. at 4 2 . In colloquial terms, “[a]n

affective disorder” under Listing 12.04 “is a mood disorder.”

Murphy v . Astrue,

, at *2 (D. M e . March 2 9 , 2012).

Importantly, the only “affective disorder” D r . Salt identified

was bipolar disorder. Admin. Rec. at 387. Accordingly, in

relying on D r . Salt’s assessment to reach the conclusion that

claimant suffers from a severe impairment of a “mood disorder,”

the ALJ surely found that claimant suffers from the severe

impairment of bipolar disorder.2

But even if some other explanation were more persuasive, a

failure by the ALJ to find a severe impairment of bipolar

disorder would not, on this record, constitute reversible error.

A Step 2 error is harmless if the ALJ “continued through the

remaining steps and considered all of the claimant's

impairments.” Syms v . Astrue,

, at * 1 (D.N.H.

Sept. 8 , 2011) (DiClerico, J . ) . Here, the ALJ did just that. At

2 Notably, too, the ALJ in his Step 2 analysis expressly acknowledged that claimant had been diagnosed with bipolar disorder.

10 both Step 3 and in his discussion of claimant’s RFC, the ALJ

credited D r . Salt’s opinion - which was based, in part, on her

recognition of claimant’s bipolar disorder — as to the nature of

claimant’s functional limitations flowing from the combination of

his impairments. See Admin. Rec. at 4 3 , 4 5 . The ALJ’s express

reliance on D r . Salt’s opinion, therefore, establishes that the

ALJ considered claimant’s bipolar disorder. C f . Lynch v . Comm.

of Social Sec. Admin.,

, at *13 (N.D.W.Va. March

3 0 , 2012) (finding that ALJ did not consider claimant’s obesity

where he relied on the opinion of the state agency physician who,

at the time she completed her report, “was unaware of the

diagnosis of obesity”).

III. The ALJ’s Consideration of D r . Dinan’s Report

In April of 2010, claimant underwent a mental status

examination by psychologist William Dinan, Ph.D. D r . Dinan

opined, among other things, that claimant suffered from

“frequent” limitations in concentration, persistence, and pace,

and that he had experienced “repeated” limitations in “Stress

Reduction-Work related (deterioration and decompensation).”

Admin. Rec. 442. He diagnosed claimant with “Bipolar I Disorder,

Most Recent Episode Manic, Severe with Psychotic Features; ADHD;

and Borderline Personality Features.” Id. at 443. He further

11 opined that, even following treatment, claimant might not be able

to return to work for one to two years. Id.

Claimant argues that the ALJ erred in his assessment of D r .

Dinan’s report by (1) giving “limited weight” to D r . Dinan’s

opinion based on a factual misapprehension, and (2) failing “to

provide any reasons whatsoever for rejecting” D r . Dinan’s

findings that suggest that claimant’s bipolar disorder “meets or

at least equals the requirements of Listing 12.04.” Doc. N o . 9,

pg. 2 .

A. ALJ’s Reason for Rejecting D r . Dinan’s Report is Supportable on the Record

In affording D r . Dinan’s opinion “only limited weight,” the

ALJ explained that he “considered the opinion” but found it not

entirely credible for reasons “similar” to those he gave in

rejecting the opinions of D r . Batt and D r . Stern.3 Admin. Rec.

46. The ALJ found D r . Batt’s and D r . Stern’s opinions not

entirely credible because they were “based primarily on the

claimant’s self-report.” Id. at 45-46.

3 Although the ALJ did not discuss D r . Dinan’s report at Step 3 , he did address it when he assessed claimant’s residual functional capacity.

12 In support of his argument that his self-reports were not

the primary basis for D r . Dinan’s report, claimant correctly

points out that D r . Dinan made numerous findings based on his own

observations, such as those regarding claimant’s appearance,

behavior, characteristics of speech, affect, and content of

thought. Admin. Rec. 441. But there is substantial evidence to

support the ALJ’s conclusion that D r . Dinan’s further findings

regarding claimant’s ability to function “in terms of”

concentration, persistence, and pace and “stress reaction”

(deterioration and decompensation), id. at 4 4 2 , were heavily

influenced by claimant’s self-reports. For example, in opining

that claimant had “frequent” functional loss in concentration,

persistence, and pace, D r . Dinan provided the following

explanation:

At home—chaotic but independent; at work—recently seasonal bartender 4 mo until 03/10—20 hrs/wk; tasks—adequate with familiar, basic jobs; attendance—erratic; frequent tardiness.

Admin. Rec. 442.

Similarly, in explaining why he checked the box “frequent”

under the category for deterioration and decompensation, D r .

Dinan wrote:

13 Increased mood variation under stress; cigarettes—1 pk/day; alcohol—rarely, some past intermittent problems; illegal drugs—none; no past problems RX—no past problems; arrested 2x (’04, ’05) dwi, domestic; jail 1x (’05) 1 mo.; no prison; no military.

Id.

In comparison, D r . Salt, whose opinion the ALJ accorded

“great weight,” conducted a review of claimant’s medical records,

taking into account claimant’s longitudinal mental health

history. Based on that review, she opined that claimant suffered

only “moderate” limitation in concentration, persistence, and

pace, and had experienced no periods of decompensation. Id. at

394. She noted, among other things, that claimant’s treating

psychiatrist, D r . Batt, had reported “a decrease in

distractibility and increase in attention span,” and that

claimant “has had no inpatient hospitalizations” for the period

reviewed. Id. at 396.

Accordingly, although one can presume that D r . Dinan’s

findings were based not only on claimant’s self-reports, but also

on D r . Dinan’s own observations, there is substantial evidence to

support the ALJ’s conclusion that D r . Dinan’s report is entitled

14 to “only limited weight” because it relies too heavily on the

former.4

B. The ALJ Did Not Improperly Overlook D r . Dinan’s Specific Findings Relating to Listing 12.04

Claimant contends that D r . Dinan’s findings support a

conclusion that his mental impairment meets Listing 12.04. To

meet Listing 12.04, “a claimant must show that he meets the

requirements of Parts A and B or C.” Beaton v . Astrue,

, at *4 (D.N.H March 2 3 , 2011) (citing 20 C.F.R. Part 4 0 4 ,

Subpart P, Appendix 1 ) . Part B requires a claimant to prove that

he has at least two of the four listed criteria: (1) marked

restriction of activities of daily living; or (2) marked

difficulties in maintaining social functioning; or (3) marked

difficulties in maintaining concentration, persistence, or pace;

or (4) repeated episodes of decompensation, each of extended

duration.

Because D r . Dinan found that claimant had “marked”

limitation in concentration, persistence, and pace, and that he

4 The court also rejects claimant’s argument that the ALJ’s explanation for rejecting D r . Dinan’s opinion was too conclusory. His explanation provides claimant, and this court, with sufficient information.

15 had had “frequent” episodes of decompensation, his opinion would

support a finding that claimant met the requirements of Listing

12.04. But rather than credit D r . Dinan’s findings, the ALJ,

instead, accorded “great weight” to D r . Salt’s findings that

claimant suffered only “moderate” limitations in concentration,

persistence, and pace, and had experienced no episodes of

decompensation. Claimant says the ALJ should have addressed D r .

Dinan’s specific findings, and that his failure to do so is

reversible error.

The court disagrees. As noted, the ALJ stated that he was

giving limited weight to the whole of D r . Dinan’s report, and he

gave as a reason the fact that it was disproportionately based on

claimant’s self-reports. Although the ALJ did not also

specifically address D r . Dinan’s findings regarding claimant’s

concentration, persistence, and pace, and history of

decompensation, he was not required to do s o . It is true, as

claimant points out, that an ALJ’s failure to discuss medical

opinions may sometimes warrant remand where the ALJ’s silence

renders meaningful judicial review impossible. See Lord v .

Apfel,

, 15-16 (D.N.H. 2000) (Barbadoro, J . ) .

Here, however, the ALJ’s stated reason for giving limited weight

to the entirety of D r . Dinan’s report is sufficient to allow

16 meaningful review - as illustrated by the court’s discussion in

subpart A , above.

Moreover, this case is not like Snow v . Astrue,

(D.N.H. Oct. 1 2 , 2011), or Dwyer v . Astrue,

(D.N.H. June 1 9 , 2012). In those cases, the court found

that the ALJ erred where, although crediting a medical provider’s

entire report (Snow) or certain of findings in it (Dwyer), he did

not discuss highly probative findings from the same report that

were inconsistent with his disability determination. In both

cases, remand was warranted because the ALJ’s silence made it

impossible for the court to know whether he “considered and

rejected” the highly probative findings, or whether he “merely

overlooked” them. Dwyer, 2012 WL at * 5 . Here, the ALJ expressly

gave “only limited weight” to the entirety of D r . Dinan’s report,

and he gave a reason for doing s o . Unlike in Snow and Dwyer,

there is no ambiguity in what the ALJ did and why he did i t . The

ALJ here did not, therefore, err in “failing” to address D r .

Dinan’s specific findings relating to the criteria for Listing

12.04.

17 IV. The ALJ’s Hypothetical Accounted for Claimant’s Limitations and the ALJ Did Not Err in Relying on the VE’s Testimony

Claimant says the ALJ’s hypothetical to the VE did not fully

account for his “moderate” limitation in concentration,

persistence, and pace. He further argues that he is entitled to

a remand because the vocational expert’s testimony was

inconsistent with the Dictionary of Occupational Titles (“DOT”)

and the ALJ failed to resolve that inconsistency. Neither

argument is supportable.

A. Hypothetical

The ALJ found that claimant suffered from a “moderate”

degree of limitation in concentration, persistence, and pace. In

his hypothetical to the V E , the ALJ asked the expert to assume

claimant was limited to simple (one to three step) and repetitive

tasks that involved only simple work-related decisions (and work

place changes); that he needed close supervision to ensure he

remained on task; and that he could be involved in only

occasional interaction with coworkers and the public. Admin.

Rec. 97-99. Claimant says these limitations do not reflect a

“moderate” degree of limitation in concentration, persistence,

and pace.

18 Courts have held that it is sometimes error for an ALJ to

limit his hypothetical to simple unskilled routine work,

involving limited interaction with others, where he has found

that claimant has moderate limitations in concentration,

persistence, and pace. See e.g., Winschel v . Commissioner of

Social Security,

(11th Cir. 2011) (citing

Stewart v . Astrue,

(7th Cir. 2009) (per

curiam). Nevertheless, “when medical evidence demonstrates that

a claimant can engage in simple, routine tasks or unskilled work

despite limitations in concentration, persistence, and pace,

courts have concluded that limiting the hypothetical to include

only unskilled work sufficiently accounts for such limitations.”

Winschel,

(collecting cases).

Here, D r . Salt, who is an acceptable medical source,

(a)(1),(2), opined that claimant’s moderate

limitation in concentration, persistence, and pace did not

prevent him from doing simple routine work, even “without special

supervision.” Admin. Rec. 400. The ALJ accepted D r . Salt’s

assessment, except he included a more restrictive limitation to

“close supervision.” Accordingly, because there was medical

evidence that claimant’s moderate limitation in concentration,

persistence, and pace did not rule out the ability to do

19 unskilled, routine work, the ALJ’s hypothetical did not fail to

account for claimant’s limitation.

B. VE’s Testimony

Claimant argues that remand is required because the VE’s

testimony conflicted with the DOT. Specifically, he says that

the VE’s testimony relating to jobs that require “close

supervision” conflicts with the DOT because the DOT does not

address the issue of “close supervision.”

Where there is a conflict between the VE’s testimony and the

DOT, the ALJ must inquire about it and explain how he resolved

the inconsistency. See SSR 00-4p,

, at * 2 . But

“the ALJ need only resolve such conflicts where they are apparent

and have been identified.” Aho v . Commissioner of Social Sec.

Admin.,

, at *14 (D. Mass. 2011), citing SSR 00-

4 p ,

, at *2 and Donahue v . Barnhart,

4 1 ,

446 (7th Cir. 2002) (SSR 00–4p “requires an explanation only if

the discrepancy was ‘identified’ . . . . ” ) .

Here, there was no reversible error because the conflict was

not “apparent,” and claimant’s counsel did not identify the

purported conflict at the time the VE testified. The implicit

20 conflict “was not deemed sufficient to merit adversarial

development in the administrative hearing”; claimant, therefore,

will “not be permitted to scan the record for implied or

unexplained conflicts between the specific testimony of an expert

witness and the voluminous provisions of the DOT, and then

present that conflict as reversible error.” Gibbons v . Barnhart,

8 , 93 (10th Cir. Dec. 1 8 , 2003) (quotation

omitted).

Conclusion

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

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

Commissioner's motion to affirm his decision (document n o . 12) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 0 , 2012

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

21