Rhonda Mason v. SSA 12-CV-017-SM 1/30/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rhonda Mason. Claimant

v. Civil No. 12-cv-OlV-SM Opinion No.

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

O R D E R

Pursuant to

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

Rhonda Mason, moves to reverse the Commissioner's decision

denying her applications for Social Security Disability Insurance

Benefits under Title II of the Social Security Act,

(the "Act"), and Supplemental Security Income Benefits

under Title XVI of the Act,

-1383c. The

Commissioner objects and moves for an order affirming his

decision.

For the reasons discussed below, claimant's motion is

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

I. Procedural History.

Claimant was born in 1987. In 2009, at the age of 22, she

filed applications for Disability Insurance Benefits and

Supplemental Security Income, alleging that she had been unable

to work since October 2, 2007, due to numerous ailments. That

application was denied and claimant requested a hearing before an

Administrative Law Judge ("ALJ").

In August of 2011, claimant and her attorney appeared before

an ALJ, who considered claimant's application de novo. Six weeks

later, the ALJ issued his written decision, concluding that

claimant retained the residual functional capacity to perform the

physical and mental demands of light work. Administrative Record

("Admin. Rec.") at 17-19. In light of that finding, the ALJ

determined that claimant was capable of performing her past

relevant work as a cashier. .Id. at 20. In the alternative, the

ALJ determined that, given her young age, educational background,

and ability to communicate in English, there are other jobs that

exist in significant numbers in the national economy that

claimant can perform. .Id. Accordingly, the ALJ determined that

she was not disabled, as that term is defined in the Act, at any

2 time prior to the date of his decision (September 23, 2011).

.

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,

asserting that the ALJ's decision is not supported by substantial

evidence and seeking a judicial determination that she is

disabled within the meaning of the Act. Claimant then filed a

"Motion for Order Reversing Decision of the Commissioner"

(document no. 8). In response, the Commissioner filed a "Motion

for Order Affirming the Decision of the Commissioner" (document

no. 10). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 11), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

3 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 &

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. Console v. Federal Maritime Comm'n.,

(1966). See also Richardson v. Perales,

(1971).

Consequently, provided the ALJ's findings are properly

supported, the court must sustain those findings even when there

4 may also be substantial evidence supporting the contrary

position. See, e.g., Tsarelka v. Secretary of Health & Human

Services,

(1st Cir. 1988); Rodriquez v.

Secretary of Health & Human Services.

(1st Cir.

1981) .

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

her impairment prevents her from performing her 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 her previous

5 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,

(1st Cir. 1982). See also

(g) and

416.912(g).

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the testimony of the claimant or

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 her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

6 With those principles in mind, the court reviews claimant's

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

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 her alleged onset of disability (October 2, 2007) and that

she had acquired sufficient quarters of coverage to remain

insured through September 30, 2009. Admin. Rec. at 12, 14.

Next, he concluded that claimant suffers from the following

severe impairments: "irritable bowel syndrome and carpal tunnel

syndrome." .Id. Nevertheless, the ALJ determined that those

impairments, regardless of whether they were considered alone or

in combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. Admin.

Rec. at 16-17.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

7 the full range of light work.1 Based upon that finding, he

concluded that she could perform her prior work as a cashier or,

in the alternative, that there are other jobs in significant

numbers in the national economy that she could perform.

Consequently, the ALJ concluded that claimant was not "disabled,"

as that term is defined in the Act, through the date of his

decision.

Discussion

Claimant challenges the ALJ's decision, asserting that he

erred in concluding that: (1) her mental impairment, dizziness,

and back pains are not severe impairments; (2) her testimony

about the severity of her impairments was not entirely credible;

(3) she retained the residual functional capacity to perform

2 "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).

8 light work; and (4) her past relevant work included employment as

a cashier.

I. Claimant's Severe Impairments.

Claimant says the ALJ erred at step two of the sequential

analysis, when he determined that her alleged mental impairment,

dizziness, and back pains were not severe. The court disagrees.

The ALJ supportably concluded that claimants back pain, "syncope

without provocation," and "anxiety disorder and affective

disorder" either fail to rise to the level of medically

determinable impairments and/or cause no more than minimal

limitations on claimant's ability to engage in substantial

gainful employment. See Admin. Rec. at 14-15. And, although

claimant does not raise it in her memorandum, the ALJ's

conclusion that her alleged fibromyalgia does not amount to a

"severe" impairment is also well-supported.

Moreover, even if the ALJ did err at step two, that error

was harmless. It is clear from the record that he thoroughly

considered claimant's non-severe impairments and discussed each

at length in reaching the conclusion that none adversely affected

her residual functional capacity. See

(a)(2). See also Montore v. Commissioner,

9 at 10 (D.N.H. Aug. 20, 2012) ("A Step 2 error is harmless if the

ALJ continued through the remaining steps and considered all of

the claimant's impairments.") (citation and internal punctuation

omitted).

II. Claimant's Credibility.

Next, claimant complains that the ALJ erred in concluding

that her statements about the intensity, persistence, and

limiting effects of her various ailments were not entirely

credible. But, the record amply supports the ALJ's credibility

determination, as does his written decision.

As the ALJ observed, claimant's assertions of disabling

physical and mental impairments are inconsistent with her

activities of daily living. See, e.g.. Admin. Rec. 170 (claimant

described her activities of daily living as follows: "I do

laundry, take a shower, eat, brush teeth, brush hair, etc. Get

dinner ready, take dog for a walk, fold laundry, clean, help

friend deliver phone books, etc. See doctors - have about 3-4

appointments a week, sometimes more - do grocery shopping, etc.")

and 176 (claimant reported that she could lift 20 pounds). See

also Id. at 403. Claimant's assertions are also inconsistent

10 with her ability to provide babysitting services to two children

during the summer of 2011. See Admin. Rec. at 4 83.

Additionally, there are several examples in the record of

claimant having reported inconsistent (even conflicting)

statements to her treating medical professionals about her

symptoms, work history, personal history, and daily activities.

Compare Admin. Rec. at 383-84, 395, 398 (in early 2010, claimant

reported to several medical professionals that she was employed

on a part-time basis, enjoyed her job, and was doing "really

well") with id. at 386-87; 393 (approximately one month later,

claimant reported that she was having several episodes of nausea

and dizziness each week, she was "stressed out," and "seizures

have been worse"); compare id. at 45 (at the administrative

hearing, claimant implied that she was surprised to learn that

she was pregnant) with id. at 403 (claimant reported that she

"stopped birth control [and was] trying to have a baby; tired of

caring for others' children, wants one of her own."); compare id.

at 39 (claimant testified she was fired from Dunkin Donuts for

having taken too many bathroom breaks as a result of her IBS)

with id. at 330 (claimant reported that she left Dunkin Donuts

because her manager sexually harassed her). See also Id. at 492

(in May of 2010, claimant reported that she had episodes of

11 dizziness, lightheadedness, and "seizures" that were too numerous

to count, causing her to fall on a "daily basis" - a level of

severity not recounted anywhere else in the record) ; .Id. at 402

(reporting to Dr. Levenson - who performed an independent mental

health evaluation - that she was not interested in seeking

additional hours at her part-time job because she was "heading

for disability.").

Whether the inconsistencies in claimant's various statements

were the product of innocent mistakes or a deliberate effort to

mislead, is not the issue — the point is that these

inconsistencies provided substantial record support for the ALJ's

credibility determination.

Based on the foregoing, the court cannot conclude that the

ALJ's credibility assessment lacks substantial support in the

record.

III. Claimant's Residual Functional Capacity.

As noted above, an individual's residual functional capacity

represents a finding of the most a claimant can do despite his or

her limitations. See

. Here, the ALJ

adopted the opinion of the state agency reviewing physician, Dr.

12 MacEachran, who reviewed the record and opined that claimant

could sustain work at the light exertional level. Admin. Rec. at

19, 427-34). The ALJ also gave "great weight" to the opinions of

Dr. Levenson, who performed an Independent Psychological

Evaluation of claimant. Following her examination of claimant,

Dr. Levenson opined that claimant has the ability to: (1) attend

to basic activities of daily living; (2) interact and communicate

with others appropriately; (3) maintain concentration adequately

to perform typical work activities and her mental health issues

"do not interfere with her ability to complete tasks,-" and (4)

"mental health factors do not currently interfere with this

woman's ability to tolerate the stresses of her current

employment." .Id. at 404-05.

The ALJ also relied upon claimant's demonstrated ability to

work (albeit on a part-time basis), her ability to perform

household chores, and her ability to provide babysitting services

during the summer of 2011 (while also caring for her own infant

child) . .Id. at 16, 19. See generally SSR 96-7p,

at *5 (July 2, 1996) (it is appropriate for an ALJ to consider a

claimant's "prior work record and efforts to work, [as well as]

daily activities" in reviewing an application for benefits). See

also Teixeira v. Astrue,

(D. M a . 2010)

13 ("The hearing officer properly utilized [claimant's] testimony

regarding her activities of daily living in assessing her

credibility regarding the intense pain. While a claimant's

performance of household chores or the like ought not be equated

to an ability to participate effectively in the workforce,

evidence of daily activities can be used to support a negative

credibility finding.").

The ALJ also pointed to objective, physical examinations of

claimant that were repeatedly normal. Admin. Rec. at 18. See

also Id. at 493. He also noted that claimant herself stated that

she could lift up to 20 pounds - an ability consistent with work

at the light exertional level. And, finally, he noted the

inconsistencies between claimant's admitted abilities and

limitations ascribed to her by some of her treating medical

professionals. Compare Admin. Rec. 176 (claimant reported on her

Social Security Function Report that she had no difficulty

sitting) with id. at 488 (Dr. Corbett opined that claimant's

ability to sit was significantly impaired - that is, limited to

10-15 minutes at a time without interruption).

14 In light of the foregoing, it is plain that ALJ's

determination that claimant can perform at the light exertional

level is supported by substantial evidence in the record.

IV. Claimant's Past Relevant Work.

Finally, claimant points out that, at step four of the

sequential analysis, the ALJ erred in concluding that she had

past relevant work as a cashier. In fact, she had not worked

sufficient hours at her various jobs for any to qualify as

substantial gainful activity. The Commissioner concedes the

error. It was, however, harmless.

Although the ALJ erred at step four when he concluded

claimant could return to her past relevant work as a cashier, he

did not stop his analysis there. Instead, he continued on to

step five and concluded that, "In the alternative, considering

the claimant's age, education, work experience, and residual

functional capacity, there are other jobs that exist in

significant numbers in the national economy that the claimant can

perform." Admin. Rec. at 20. In reaching that conclusion, he

relied upon the Medical-Vocational Guidelines, 20 C.F.R. p t . 404,

subpt. P, App. 2, tables 1-3, (also known as the "Grid").

15 Given that substantial evidence supports the ALJ's

determination of claimant's medically determinable severe

impairments and her RFC, his use of the Grid at step five was not

improper. And, his conclusion that claimant is capable of

performing other work in the national economy is supported by

substantial evidence.

Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that the there is substantial evidence in the

record to support the ALJ's determination that claimant was not

disabled. The ALJ adequately explained his decision to credit

the opinions of some medical providers, while discounting others;

he supportably concluded that claimant's testimony about the

disabling nature of her impairments was somewhat overstated; he

supportably concluded that she is capable of performing at the

light exertional level; and, finally, his determination that

claimant can perform jobs that exist in significant numbers in

the national economy is supported by substantial evidence.

The question before this court is not whether it might find

claimant to be disabled and entitled to benefits on the record

16 presented. The scope of the court's inquiry (and its authority)

is far more limited. The question presented here is a narrow

one: whether there is substantial evidence in the record to

support the ALJ's decision. In this case, there is.

That there is also substantial evidence in the record

demonstrating that claimant suffers from several ailments and

impairments, is not sufficient grounds upon which to reverse the

ALJ's decision, which, as noted, is supported by substantial

evidence as well. When substantial evidence can be marshaled

from the record to support either the claimant's position or the

Commissioner's decision, this court is obligated to affirm the

Commissioner's finding of no disability. See, e.g., Tsarelka,

("[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."); Rodriquez,

("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."); Andrews v. Shalala,

(9th Cir. 1995) ("We must uphold the ALJ's

decision where the evidence is susceptible to more than one

17 rational interpretation."). See also Gwathnev v. Chater, 104

F .3d 1043, 1045 (8th Cir. 1997) .

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

decision of the Commissioner (document no. 8.) is necessarily

denied, and the Commissioner's motion to affirm his decision

(document no. 1.0) is granted. The Clerk of the Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

Sjreven J./McAuliffe United States District Judge

January 30, 2013

cc: Elizabeth R. Jones, Esq. Robert J. Rabuck, AUSA

18