UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David R. Costa, Claimant

v. Case No. 13-cv-241-SM Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

David Costa, moves to reverse or vacate the Commissioner’s

decision denying his applications for Social Security Disability

Insurance Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under

Title XVI of the Social Security Act,

-1383c

(collectively, the “Act”). The Acting Commissioner objects and

moves for an order affirming her decision.

For the reasons discussed below, claimant’s motion is

denied, and the Acting Commissioner’s motion is granted. Factual Background

I. Procedural History.

In 2010, claimant filed an applications for Disability

Insurance Benefits and Supplemental Security Income benefits,

alleging that he had been unable to work since July 12, 2009, due

to ventricular tachycardia (status post-ICD implant), bilateral

hearing loss, degenerative disk disease of the lumbar spine,

degenerative changes in the left hip and knee, carpal tunnel

syndrome, COPD, depression, anxiety, social phobia, and a

learning disability. That application was denied and claimant

requested a hearing before an Administrative Law Judge (“ALJ”).

In March of 2012, claimant, his attorney, his fiancee, and a

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. Three weeks later, the ALJ

issued his written decision, concluding that claimant was not

disabled, as that term is defined in the Act, at any time prior

to the date of his decision.

Claimant then sought review of the ALJ’s decision by the

Appeals Council. That request was denied. Accordingly, the

ALJ’s denial of claimant’s applications for benefits became the

final decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

2 asserting that the ALJ’s decision is not supported by substantial

evidence. Claimant then filed a “Motion to Reverse” the Decision

of the Commissioner (document no. 9). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 13). Those motions are

pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 14), 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

supported by substantial evidence. See

(g),

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

3 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

Co. v. NLRB,

(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.,

(1966). See also Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking Social Security disability benefits is

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

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A). 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,

(1987); Santiago v. Secretary of Health & Human

Services,

(1st Cir. 1991). To satisfy that burden,

the claimant must prove, by a preponderance of the evidence, that

4 his impairment prevents him from performing his former type of

work. See Gray v. Heckler,

(1st Cir. 1985);

Paone v. Schweiker,

(D. Mass. 1982). If

the claimant demonstrates an inability to perform his previous

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

are other jobs in the national economy that he can perform, in

light of his age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

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

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). 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

5 whether a specific job vacancy exists for him, or whether he would be hired if he 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 Acting Commissioner’s motion to affirm

her decision.

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

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: July 12, 2009. Admin.

Rec. at 13. Next, he concluded that claimant suffers from the

following severe impairments: “a history of ventricular

tachycardia with implanted defibrillator, bilateral sensorineural

hearing loss, degenerative changes of the lumbar spine, left hip

and knee, carpal tunnel syndrome, chronic obstructive pulmonary

disease and a learning disability with social anxiety disorder

versus depressive disorder - NOS.”

Nevertheless, the ALJ

determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

6 medically equal one of the impairments listed in Part 404,

Subpart P, Appendix 1 of the regulations. Admin. Rec. at 15-17.

Next, the ALJ concluded that claimant retained the residual

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

light work.1 Admin. Rec. at 17. He noted, however, that

claimant must “avoid concentrated exposure to noise.”

In

light of those restrictions, the ALJ concluded that claimant was

not capable of performing his prior work as a mechanic’s helper,

a construction helper, or a welding helper. Id. at 19.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the testimony of a vocational expert, the ALJ concluded that,

notwithstanding claimant’s exertional and non-exertional

limitations, he “is capable of making a successful adjustment to

1 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

7 other work that exists in significant numbers in the national

economy.” Id. at 20. Consequently, the ALJ concluded that

claimant was not “disabled,” as that term is defined in the Act,

through the date of his decision (March 21, 2012).

Discussion

Claimant challenges the ALJ’s decision on a number of

grounds, asserting that he erred by: (1) failing to consider

whether the combination of claimant’s impairments meets a listing

level of severity; (2) misstating, or taking out of context,

claimant’s activities of daily living (particularly his “reading”

of the daily newspaper, mowing the lawn, and doing laundry); (3)

misstating the medical opinion evidence of record; (4) failing to

give sufficient weight to the testimony given by claimant’s

fiancee; (5) failing to consider all of claimant’s impairments -

in particular his carpal tunnel syndrome; and (6) failing to

present the vocational expert with a hypothetical that included

all of claimant’s impairments.

I. Step Three - Listing Level of Impairment(s).

At step three of the sequential analysis, claimant bears the

burden of demonstrating that he suffers from an impairment or

combination of impairments that meets or equals a listing in the

pertinent regulations. See Torres v. Secretary of Health & Human

8 Services,

(1st Cir. 1989) (citing Dudley v.

Secretary of Health & Human Services,

(1st Cir.

1987)). While claimant identifies his impairments - focusing in

particular on his ventricular tachycardia, status post-ICD

implant, and COPD - he has not shown how they (together or in

combination with his other impairments) amount to a listing level

impairment. See Claimant’s memorandum (document no. 9-1) at 6.

The ALJ, on the other hand, specifically (and thoroughly)

addressed each of claimant’s impairments, Admin. Rec. at 13-15,

and concluded that they did not meet a listing level - either

standing alone or in combination, id. at 15-17. The court can

discern no error in the ALJ’s findings, which are supported by

substantial evidence.

II. Claimant’s Activities of Daily Living.

Claimant takes issue with the ALJ’s having stated that

claimant “acknowledged that he spent time reading the paper,

using a computer, fishing, watching movies and playing video

games.” Admin. Rec. at 16. Claimant asserts that the ALJ

overstated the time he spent playing video games and incorrectly

reported that claimant “read” the newspaper, when he actually

stated that he “looked at” the newspaper (noting that claimant

has some difficulty reading and writing). See Claimant’s

9 memorandum at 7-8. In his “Function Report” dated September 22,

2010, claimant reported that he began each day by having coffee,

looking at the paper, checking things out on line, and taking a

walk. Admin. Rec. at 220. He repeated those statements in

January of 2011. Id. at 241.

Even if the ALJ erred in construing the record evidence (he

did not), such an error would have been harmless.2 The

distinctions claimant attempts to draw are so subtle as to have

little weight. Even interpreting the record as claimant asks, it

still does not support his claim that the ALJ’s decision rests on

less than substantial evidence. Moreover, as the Commissioner

points out, the ALJ relied on claimant’s reported activities of

daily living simply as part of his broader credibility

determination, not as part of his assessment of claimant’s RFC or

as proof of claimant’s ability to engage in substantial gainful

activity. See Admin. Rec. at 18 (listing claimant’s activities

and concluding that “[t]hese tasks belie the claimant’s current

testimony.”). See generally St. Pierre v. Shalala,

*3 (D.N.H. May 25, 1995) (“When evaluating the subjective

claims of pain it is proper and, indeed, required that the ALJ

consider daily activities such as driving, walking and household

2 Parenthetically, the court notes that it was not unreasonable for the ALJ to have inferred that “looking at” the newspaper involved reading.

10 chores. This allows the Secretary to juxtapose the claimant’s

subjective allegations of pain with the relative intensity of his

daily regimen.”) (citations omitted).

III. Medical Opinion Evidence.

Next, claimant asserts that the ALJ improperly credited the

opinions of non-examining physicians (Kelvin Samaratunga, M.D.,

Admin. Rec. at 348-55; Burton Nault, M.D., id. at 408; and

Michael Schneider, Psy.D., id. at 382-98) over those of examining

physicians (Sandra Vallery, Ph.D., id. at 286-94; Darrell Horton,

Ph.D., id. at 377-80; and Peter Sanfelippo, M.D., id. at 360-63).

In discussing the weight that will be ascribed to the opinions of

“treating sources,” the pertinent regulations provide:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion.

(c)(2). See also Social Security Ruling,

Policy Interpretation Ruling Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions, SSR 96-

2p,

(July 2, 1996). Importantly, however, there

11 is no per se rule requiring the ALJ to give controlling weight to

the opinion of an examining, or even a treating source; to be

entitled to such weight, a medical source’s opinions must be

“well-supported by medically acceptable clinical and laboratory

diagnostic techniques and [cannot be] inconsistent with the other

substantial evidence in [the] case record.”

(c)(2).

In this case, the medical opinions from the examining

sources are not dramatically different from those expressed by

the non-examining sources. While claimant focuses on a few of

the differences, they are not sufficient to undermine the ALJ’s

conclusions. For example, claimant points to Dr. Vallery’s

somewhat ambiguous (and far-from-conclusive) statement that

claimant “would probably have some difficulty with short and

simple instructions.” Admin. Rec. at 292. Claimant says that

statement, if fully credited, would undermine his ability to

perform light work. And, he adds, the ALJ failed to adequately

explain why he did not fully credit that statement.

Dr. Vallery’s complete assessment of claimant’s abilities in

the realm of understanding and remembering instructions reads as

follows:

12 This claimant was able to understand instructions. He did have problems though with memory, both on the Folstein Mini Mental Status Examination as well as in the interview where there are many dates and sequences of events that he could not recall with any specificity. He would probably have some difficulty with short and simple instructions which would be confounded by his hearing problem, and certainly would have difficulty with anything that was complex and lengthy.

Admin. Rec. at 292. Dr. Schneider, who reviewed claimant’s

medical records - including the report prepared by Dr. Vallery -

concluded that, notwithstanding his limitations, claimant “is

able to understand, remember, and carry out short and simple

verbal instructions. He is not able to understand, remember and

carry out more detailed ones.” Id. at 398. Viewing the record

evidence as a whole - including, for example, claimant’s

employment history and activities of daily living - the ALJ

sustainably concluded that claimant’s memory issues would not

preclude him from remembering (and carrying out) short and simple

instructions. And, he adequately explained the basis for his

decision to afford substantial weight to those medical opinions

he credited most heavily.

Claimant also challenges the ALJ’s decision to give less

than controlling weight to the opinion of Peter Sanfelippo, M.D.

Dr. Sanfelippo conducted a consultative examination of claimant

in March of 2011, and, based upon a physical examination of

13 claimant, a review of his medical records, and his self-reported

medical history, Dr. Sanfelippo concluded that:

Based on the evidence during the examination, the examinee is able to perform work activities which require sitting, limited standing and moving about, and very limited lifting and carrying. He is able to handle objects. He does have decreased hearing acuity. He is able to speak.

Admin. Rec. at 362. Claimant asserts that, if fully credited,

Dr. Sanfelippo’s opinion that he is capable of only “limited

standing and moving about” would render him unable to perform

“light” work. Again, however, while there may be substantial

evidence in the record to support claimant’s view that he is

disabled, there is also substantial evidence to support the ALJ’s

contrary view. See, e.g., Admin Rec. at 220-24, 241-42, 244,

291, 317, 349, 355, 362, and 378.

IV. Testimony from Claimant’s Fiancee.

Claimant asserts that the ALJ failed to even mention

testimony given at the hearing by claimant’s fiancee - testimony

that supported his claim to be disabled. See Claimant’s

memorandum at 16 (“The ALJ failed to mention anywhere in his

decision that the fiancee was present or had testified at the

hearing.”). That is not correct. In recounting claimant’s

testimony, the ALJ specifically noted that his “fiancee also

testified and corroborated the claimant’s testimony.” Admin.

14 Rec. at 18. Plainly, after thoroughly considering the evidence

of record, the ALJ concluded that claimant’s testimony, as well

as that of his fiancee, overstated claimant’s impairments to some

degree. That was an entirely permissible conclusion for the ALJ

to draw, it is supported by substantial evidence, and he was not

required to address the fiancee’s testimony in any greater

detail. The Court of Appeals for the Seventh Circuit has

addressed this very point:

Books’s brother Roland’s testimony did not constitute a separate “line of evidence.” Rather, it served strictly to reiterate, and thereby corroborate, Books’s own testimony concerning his activities and limitations. To the extent ALJ Bartelt found Books’s testimony concerning his disabling pain and physical limitations to be untenable when contrasted with his reported daily activities and the relevant medical evidence, he necessarily found Roland Books’s supporting testimony similarly not credible. ALJ Bartelt, therefore, did not err by declining to address Roland’s testimony specifically.

Books v. Chater,

(7th Cir. 1996). See also

Lindahl v. Barnhart,

*6,

(D.N.H.

Aug. 21, 2003).

V. Consideration of Claimant’s Carpal Tunnel Syndrome.

Next, claimant asserts that the ALJ’s RFC determination “is

internally inconsistent with the ALJ’s severity findings at step

2. No explanation was offered for leaving out limitations

associated with carpal tunnel syndrome.” Claimant’s memorandum

15 at 18. Again, however, substantial evidence supports the ALJ’s

(implicit) conclusion that claimant’s carpal tunnel syndrome did

not substantially affect his RFC. For example, Dr. Samaratunga

opined that claimant had no manipulative limitations. Admin.

Rec. at 350. Similarly, after examining claimant, Dr. Sanfelippo

reported that claimant: “has normal grasp and squeeze with both

hands. He has full motion of all fingers, both hands, both

wrists, both elbows, and both shoulders.” Id. at 362.

VI. The ALJ’s Hypothetical.

Finally, claimant challenges the hypothetical question the

ALJ posed to the vocational expert. Specifically, he asserts

that if the ALJ had included all of the exertional and non-

exertional limitations identified by some of the consulting

physicians, he would have been found disabled. But, it is

quintessentially the role of the ALJ to review the record

evidence, ascribe to each piece of evidence appropriate weight,

and render his decision. Here, as discussed above, the ALJ

adequately (and supportably) explained his decision to credit

some of the record evidence and discount other evidence. As is

often the situation in disability cases, there is certainly

substantial evidence to support claimant’s position. But,

importantly, there is also substantial evidence to support the

ALJ’s adverse decision.

16 Conclusion

This court’s review of the ALJ’s decision is both limited

and deferential. It is not empowered to consider claimant’s

application de novo, nor may it undertake an independent

assessment of whether he is, in fact, disabled. Rather, the

court’s inquiry is “limited to determining whether the ALJ

deployed the proper legal standards and found facts upon the

proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999). Provided the ALJ’s findings are properly

supported by substantial evidence - as they are here - the court

must sustain those findings even when there may also be

substantial evidence supporting the contrary position. Such is

the nature of judicial review of disability benefit

determinations. See, e.g., 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.”). Consequently, while there

is certainly substantial evidence in the record demonstrating

that claimant suffers from some cognitive deficits, hearing loss,

anxiety, and a history of ventricular tachycardia, the existence

of such evidence is not sufficient to undermine the ALJ’s

determination that claimant is not disabled, which is also

supported by substantial evidence.

17 Having carefully reviewed the administrative record

(including the testimony of the claimant, his fiancee, and the

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

Acting 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 (March 21, 2012). The ALJ’s

determination of claimant’s RFC, his weighing of the various

medical opinions of record and claimant’s activities of daily

living, his credibility determinations, and his hypothetical to

the vocational expert are well-reasoned and supported by

substantial record evidence.

For the foregoing reasons, as well as those set forth in the

Acting Commissioner’s memorandum, claimant’s motion to reverse

the decision of the Commissioner (document no. 9) is denied, and

the Acting Commissioner’s motion to affirm her decision (document

no. 13) is granted. The Clerk of the Court shall enter judgment

in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge August 19, 2014

cc: Janine Gawryl, Esq. Robert J. Rabuck, AUSA

18