Monica Towne v. SSA 11-CV-434-SM 9/25/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Monica Towne, Claimant

v. Case No. ll-cv-434-SM Opinion No.

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

O R D E R

Pursuant to

(g), Claimant, Monica Towne,

moves to reverse the Commissioner's decision denying her

application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act,

(the

"Act"). The Commissioner objects and moves for an order

affirming his decision.

Factual Background

I. Procedural History

On March 31, 2009, claimant filed an application for social

security disability insurance benefits ("DIB benefits"), alleging

that she had been unable to work since March 28, 2009. She

asserts eligibility for benefits based on disabilities due to hip

dysplasia and left leg weakness, lumbosacral spondylosis,

radiculitis of the thoracic and lumbar spine, and right carpal tunnel syndrome. Her application for benefits was denied and she

requested an administrative hearing before an Administrative Law

Judge ("ALJ").

On January 5, 2011, claimant (who was then 48 years old),

her attorney, and an impartial vocational expert appeared before

an ALJ. Claimant's husband testified on her behalf. On January

24, 2011, the ALJ issued her written decision, concluding that

claimant was not disabled. The Decision Review Board selected

the ALJ's decision for review, but did not complete its review

within the time allowed. 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 disability benefits. Now pending are claimant's

"Motion for Order Reversing Decision of the Commissioner"

(document no. 15) and the Commissioner's "Motion for Order

Affirming the Decision of the Commissioner" (document no. 16).

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

2 court record (document no. 18), 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

(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

1 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB,

(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.,

(1966).

3 as it is supported by substantial evidence."). See also

Rodriquez v. Secretary of Health & Human Services,

(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,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(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,

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

to the ALJ's credibility determinations, particularly when those

determinations are supported by specific findings. See

Frustaqlia v. Secretary of Health & Human Services,

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

Human Services,

(1st Cir. 1986)).

4 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,

(1987); Santiago v.

Secretary of Health & Human Services,

(1st Cir.

1991). To satisfy that burden, claimant must prove that her

impairment prevents her from performing her former type of work.

See Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health & Human Services,

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

establish a doubt-free claim. The initial burden is satisfied by

the usual civil standard: a "preponderance of the evidence." See

Paone v. Schweiker,

(D. Mass. 1982).

If 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,

5 683 F .2d 1, 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,

(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,

(1st Cir. 1986); Goodermote,

. 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.

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.

2 3 (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.

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

. She first determined that claimant had not been

engaged in substantial gainful employment since her alleged onset

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

impairments of hip dysplasia and left leg weakness secondary to

total hip arthroplasty and osteotomy, lumbosacral spondylosis and

7 radiculitis of the thoracic and lumbar spine. Administrative

Record ("Admin. Rec.") 16. 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 404, Subpart P, Appendix 1. Admin.

Rec. 17.

Next, the ALJ concluded that claimant retained the residual

functional capacity to perform light work, "except the claimant

may only occasionally climb, balance, stoop, kneel, crouch and

crawl." Admin. Rec. 18. The ALJ concluded that claimant is

capable of performing past relevant work as a fitter in

alterations. Admin. Rec. 20. Consequently, the ALJ concluded

that claimant was not "disabled," at any time relevant to her

decision. Admin. Rec. 22.

In support of her motion to reverse the decision of the

Commissioner, claimant advances three arguments: (1) the ALJ

improperly assessed the medical opinion evidence; (2) the ALJ

improperly discounted claimant's credibility; and (3) the ALJ's

determination that claimant could perform her past relevant work

is not supported by substantial evidence. II. The ALJ's Assessment of the Medical Opinion Evidence

The evaluation of medical opinions is governed by

, which provides that the Commissioner, when

"determining whether [claimant] is disabled . . . will always

consider the medical opinions in [claimant's] case record

together with the rest of the relevant evidence."

(b). See also Evans v. Barnhart,

, at *5

(D.N.H. Dec. 4, 2003). Medical opinions, in turn, "are

statements from physicians and psychologists or other acceptable

medical sources."

(a) (2) .

During the process of review, when the Commissioner

determines that "any evidence in the record, including any

medical source opinions, is inconsistent with other evidence or

is internally inconsistent, the ALJ must weigh all of the

evidence to determine whether the claimant is disabled." Fogg v.

Astrue,

, at *8 (D.N.H. July 6, 2012) (Barbadoro,

J.) (citing

(b)). When it is necessary to

weigh medical evidence, every medical opinion will be evaluated,

regardless of its source.

(c).

Here, the ALJ accorded "substantial weight" to the opinion

of claimant's treating physician. Dr. Brummett. Claimant saw him

on one occasion. The ALJ noted that Dr. Brummett found that

9 claimant was "neurologically intact with no deficits appreciated

at any level; her range of motion was noted to be well preserved;

her lower extremities showed good range of motion; and . . .

[she] walk[ed] with a nice stable upright gait and posture."

Admin. Rec. 19. The ALJ also credited Dr. Brummett's statement

that he "did not recommend disability," and his further opinion

that claimant "should maintain as much activity as possible."

She further found that treatment notes supported his

findings. .Id. at 20.

Claimant asserts that the ALJ improperly credited Dr.

Brummett's opinion. She points out that Dr. Brummett's treatment

notes, which were "less than a page," never mention the findings

from a previous whole body scan. Document No. 15-1, pg. 15.

But she does not explain how the scan findings directly undermine

Dr. Brummett's opinion, nor does she address some apparent

consistencies between the whole body scan findings and the MRI

findings on which Dr. Brummett explicitly relied. Moreover, the

ALJ did incorporate the whole body scan findings into her

decision. The court cannot say, therefore, that the ALJ erred in

giving substantial weight to Dr. Brummett's opinion.

Claimant also argues that the ALJ improperly assessed the

medical opinion of Dr. Gonzalez, who examined claimant on two

10 occasions. The ALJ accorded that opinion "[g]reat weight."

Admin. Rec. 20. Claimant posits, however, that the ALJ's finding

that she is not disabled conflicts with Dr. Gonzalez's finding

that she needs a hip placement revision, and with his statement

that it was difficult to know exactly how much of claimant's pain

was the result of the prior hip replacement. But the ALJ was

entitled to consider those findings together with Dr. Gonzalez's

further opinion that claimant "could continue weight-bearing

walking and performing her regular physical activities." Jt.

Stmt., doc. no. 18, pg. 5. See 20 C.F.R. Sec. 1520(a)(3) ("We

will consider all evidence in your case record when we make a

determination or decision whether you are disabled.").

Accordingly, the court cannot conclude that the ALJ erred in her

assessment of Dr. Gonzalez's medical opinion.

For these reasons, the court finds that substantial evidence

supports the ALJ's assessment of the medical opinions.

III. Claimant's Allegations of Disabling Pain

It is the province of the ALJ to determine a claimant's

credibility regarding her allegations of disabling pain.

Accordingly, if properly supported, the ALJ's credibility

determination is entitled to substantial deference from the

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

("It is the

11 responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence.").

Once it is determined that a claimant has impairments that

are capable of causing pain, the ALJ must "evaluate the

intensity, persistence, and limiting effects of the [pain] to

determine the extent to which the [pain] limit[s] the

individual's ability to do basic work activities." Social

Security Ruling (SSR) 96-7p (July 2, 1996). If claimant's

allegations regarding the intensity, persistence, and limiting

effect of the pain are not supported by the objective medical

evidence, the ALJ must look beyond the objective medical evidence

and consider the following factors:

(1) the claimant's daily activities;

(2) the location, duration, frequency, and intensity of the claimant's pain;

(3) factors that precipitate and aggravate the pain;

(4) type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the pain;

(5) treatment, other than medication, the claimant receives or has received for relief of pain;

(6) any measures other than treatment the claimant uses or has used to relieve pain; and

12 (7) any other factors concerning the claimant's functional limitations and restrictions due to pain.

(c)(4), 416.929(c)(4); SSR 96-7p; Avery v.

Secretary of Health and Human Services,

(1st

Cir. 1986) .

Here, claimant asserts that the ALJ erred in finding that

her testimony about the disabling nature of her impairments was

not entirely credible. She argues that the ALJ did not

"comprehensively" consider her testimony about her daily

activities, specifically, her need to rest, lie down, and stretch

after sitting for two hours, and her need for assistance with

laundry and gardening. Doc. No. 15-1, pg. 24. She also argues

that the treatment notes of Dr. Hsu, a pain specialist, support

her allegations of disabling symptoms. Dr. Hsu opined that

claimant was unable to ambulate effectively, or squat and rise

above a squatting position.

Despite evidence in the record that would support claimant's

testimony about the severity and persistence of her pain, other

evidence, on which the ALJ relied, tends to contradict that

testimony. The ALJ considered, for instance, the inconsistency

between claimant's assertion of disabling pain and (1) Dr.

Gonzalez's opinion that claimant could continue her physical

13 activities; (2) the medical finding that claimant had a well-

coordinated and smooth gait; (3) the fact that Dr. Brummett did

not "recommend disability"; and (4) testimony by claimant and her

husband about her daily activities, which included walking, doing

yoga, daily dog walks, household chores, and sewing. Admin. Rec.

19-20. With regard to Dr. Hsu's opinion, the ALJ considered that

evidence, but concluded that Dr. Hsu did not substantiate his

conclusion. Admin. Rec. 20.

Because the ALJ was entitled to resolve the evidentiary

conflicts, Irlanda Ortiz,

, the court cannot

conclude that the ALJ erred in her assessment of claimant's

credibility, or her assessment of the severity and persistence of

the pain claimant experienced.

IV. Claimant's Capacity to Perform Past Relevant Work

Claimant argues that once the ALJ found her capable of

performing light work, limited to occasional climbing, balancing,

stooping, kneeling, crouching and crawling, the ALJ erred by

finding that she had the residual functional capacity to perform

her past relevant work as a fitter in alterations. The

Commissioner counters that claimant failed to carry her burden of

showing how her functional limitations rendered her incapable of

performing her past relevant work, because her own description of

14 the work of a fitter in alterations, as she actually performed

it, demonstrates her ability to perform that job.

At step four of the five-step process, claimant had the

burden of showing that she was unable to do her past relevant

work. See Seavev v. Barnhart,

(1st Cir. 2001). As

"the primary source for vocational documentation" of past

relevant work, her testimony "is generally sufficient for

determining the skill level, exertional demands, and

nonexertional demands of such work." Santiago v. Sec'v of Health

& Human Services,

(1st Cir. 1991) .

Here, the record before the ALJ included information from

claimant herself indicating that when she worked as a fitter in

alterations she lifted and carried ten pounds with occasional

bending, stooping, and crouching. Admin. Rec. 21. She also

described her past work as involving "sitting for several hours

at a time with walking and standing for one to two hours in a

workday."

The ALJ's finding that claimant was capable of light work,

with limitations related to occasional climbing, balancing,

stooping, kneeling, crouching and crawling was properly

supported. And there was substantial evidence before the ALJ

15 (claimant's own testimony) that claimant was capable of

performing her former job as she actually performed it. See

Santiago,

. Because the ALJ's finding is supported

by substantial evidence, it must stand as conclusive. See

(g); Zvla v. Astrue,

, at *9 (D.N.H.

April 6, 2 009) .

Conclusion

For these reasons, the court concludes that there is

substantial evidence in the record to support the ALJ's

determination that claimant was not disabled through the date of

her decision. Her assessment of the medical opinion evidence and

claimant's credibility, and her determination that claimant can

perform her past relevant work, are adequately supported by

evidence in the record.

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 narrow: Is there substantial evidence in

the record to support the ALJ's decision? Here, there is.

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

Commissioner (document no. J1J5) is denied, and the Commissioner's

motion to affirm his decision (document no. 1_6 ) is granted.

16 The Clerk of the Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J./McAuliffe Jnited States District Judge

September 25, 2012

cc: Ralph A. Giangregorio, Esq. Robert J. Rabuck, AUSA

17