Santiago v . Astrue CV-11-537-JL 3/29/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Edwin Santiago

v. Civil N o . 11-cv-537-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

SUMMARY ORDER

Edwin Santiago has appealed the Social Security

Administration’s denial of his applications for Social Security

Disability Insurance (“SSDI”) and Supplemental Security Income

(“SSI”). An administrative law judge at the SSA (“ALJ”) ruled

that, despite Santiago’s severe impairments (morbid obesity and

sleep apnea), he retains the residual functional capacity (“RFC”)

to perform jobs that exist in significant numbers in the national

economy, and, as a result, is not disabled. See

(a), 416.905(a). The Appeals Council later denied

Santiago’s request for review of the ALJ’s decision, see

§ 404.968(a), with the result that the ALJ’s decision became the

SSA’s final decision on Santiago’s application, see id.

§ 404.981. Santiago appealed the decision to this court, which

has jurisdiction under

(g) (Social Security).

Santiago has filed a motion to reverse the decision. See

L.R. 9.1(b)(1). He argues that the ALJ made four errors in concluding that, despite Santiago’s morbid obesity and sleep

apnea, he had the RFC to perform jobs that exist in significant

numbers in the national economy:

(1) the ALJ erroneously found Santiago’s other claimed impairments, including cellulitis, venous statis, and hernia, to be non-severe;

(2) the ALJ improperly gave only some weight to the opinions of Santiago’s treating physician, but gave great weight to the opinions of a consulting physician who did not treat Santiago;

(3) the ALJ gave very limited weight to the opinion of a psychologist who examined Santiago; and

(4) the ALJ failed to call on a vocational expert in deciding that Santiago could perform jobs that existed in significant numbers in the national economy.

The Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See L.R. 9.1(d). The Commissioner

argues that the ALF:

(1) supportably found that a number of Santiago’s claimed impairments were non-severe and, in any event, considered those claimed impairments in assessing Santiago’s RFC;

(2) properly rejected the opinions of Santiago’s treating physician, to the extent they were inconsistent with the opinions of the consulting physician, because the consulting physician’s opinions were more consistent with the evidence of record;

(3) properly rejected the opinions of the psychiatrist as inconsistent with the evidence of record; and

(4) properly relied on the Medical Vocational Rules, see

0 4 , Subp. B , App. 2 , rather than a vocational expert, in finding that Santiago could

2 perform jobs that existed in significant numbers in the national economy.

As explained below, the court agrees with the Commissioner,

and therefore grants his motion to affirm (and denies Santiago’s

motion to reverse) the ALJ’s decision.

As noted at the outset, the ALJ found that Santiago suffered

from two severe impairments, morbid obesity and constructive

sleep apnea. While Santiago had also been “diagnosed with

recurring cellulitis of the legs, venous statis, and recurrent

hernia during the period” of his claimed disability, as the ALJ

noted, he did “not find any of these conditions to be severe.”

With exceptions not relevant here, to be eligible for either

SSDI or SSI benefits, a claimant must have a severe impairment,

, 404.1505(a), i.e., one that, “[u]nless [it]

is expected to result in death, . . . must have lasted or must be

expected to last for a continuous period of at least 12 months,”

§§ 404.909, 404.1509. In finding that Santiago’s cellulitis,

venous statis, and hernia were not severe, the ALJ found that

“none of these conditions caused more than mild work limitations

for an entire 12-month period.” Specifically, the ALJ found that

(a) Santiago “suffered several bouts of cellulitis, but each

episode was treated and generally cleared before another arose;”

(b) Santiago “underwent repair of [a] hernia in March of 2010 and

3 then again in March of 2011, but made few complaints related to

it in between;” and (c) Santiago’s “venous statis and later

diagnosed blood clots seem to have been controlled with

medication, and did not prevent him from walking for exercise.”

Without challenging any of these subsidiary findings,

Santiago maintains that the ALJ nevertheless erred in concluding

that Santiago’s cellulitis, hernia, and venous statis were not

severe. Relying on an Eleventh Circuit case, Thornton v . Astrue,

(11th Cir. 2009), for the proposition that

“recurrent conditions can be disabling,” Santiago argues that,

“[i]nasmuch as recurrent problems can be disabling, a fortiori

they can satisfy the de minimis severity standard.” If Santiago

is arguing that, simply because a condition is recurrent, it is

necessarily severe, then his logic is obviously flawed. (To take

but one example, acne can be “recurrent,” but only in exceedingly

rare cases would anyone argue it is “severe” so as to qualify as

a disabling impairment.) And if Santiago is arguing that, taking

the recurrent nature of his cellulitis, hernia, and venous statis

into account, those conditions (or any of them) lasted for at

least 12 months, he has not pointed to anything in the record

that would have required the ALJ to reach that conclusion.1

1 Santiago asserts that, as a result of these conditions, he required “frequent” medical care, including hospitalizations,

4 In any event, because the ALJ found that Santiago suffered

from severe impairments in the form of morbid obesity and sleep

apnea, whether the ALJ should have found that Santiago also

suffered from additional severe impairments is immaterial. As

the Commissioner points out, once an ALJ identifies one severe

impairment, he must “consider the limiting effects of all [the

claimant’s impairments], even those that are not severe.”

(e). That is precisely what the ALJ did here,

explaining that, “[w]hile he [did] not find [Santiago’s

cellulitis, hernia, and venous statis] to be severe . . . they

are noted to be caused by or related to [his] obsesity”--which

was, of course, an impairment that the ALJ did find to be severe.

The ALJ did not err in his treatment of Santiago’s cellulitis,

hernia, and venous statis as non-severe impairments. See Pompa

v . Comm’r of Soc. Sec., 73 Fed. App’x 8 0 1 , 803 (6th Cir. 2003).

The ALJ found that, despite Santiago’s impairments, he

retained the RFC to perform less than the full range of light

work. “[L]ight work . . . requires a good deal of walking or

standing, or . . . involves sitting most of the time with some

pushing and pulling with arm or leg controls.” 20 C.F.R. §§

between December 2009 and March 2010. But that period is considerably shorter than 12 months and, again, Santiago has pointed to nothing in the record suggesting that his need for such frequent medical care persisted beyond that point.

5 404.1567(b), 416.967(b). The ALJ found that Santiago “can stand

or walk for at least two hours, and sit for about 6 hours during

an 8-hour workday. He can perform all postural activities on an

occasional basis.”

As support for this finding, the ALJ relied on the opinions

of Jonathan Jaffe, M.D., a medical consultant who, based on

certain of Santiago’s medical records, completed an RFC

assessment in March 2010. The ALJ gave D r . Jaffe’s opinions

“great weight, as they are generally consistent with the evidence

on record,” including Santiago’s “ability to walk for exercise.”

Indeed, the ALJ noted, after D r . Jaffe had completed the

assessment, Santiago “took up walking for exercise once more,

just as he had been doing at the time” of the assessment.

Dr. Jaffe’s opinions were also consistent, in large part,

with an RFC questionnaire completed by Santiago’s treating

physician, D r . Boris Naprta, in April 2010. D r . Naprta concluded

that, during an 8-hour workday, Santiago “could stand or walk for

about 4 hours” (an even longer time than D r . Jaffe had found);

could sit for at least 6 hours (just as D r . Jaffe had found); and

could occasionally lift or carry 20 pounds and frequently lift or

carry 10 pounds (also just as D r . Jaffe had found).

But D r . Naprta also opined that Santiago suffered from

additional limitations, beyond those specifically identified by

6 Dr. Jaffe. D r . Naprta concluded that Santiago “would need to

take two to three unscheduled breaks during the workday for five

to ten minutes each;” that, with prolonged sitting, his legs

should be elevated above horizontal during 20-30% of an 8-hour

workday; and that he could walk no more than one city block

“without rest or severe pain.” D r . Naprta also opined that

Santiago “would need to be absent about 4 days per month.” The

ALJ’s decision sets forth these opinions, then states that they

“are given some weight, as they are somewhat consistent with the

medical evidence on record. However, [the ALJ] finds little to

no support for the alleged number of missed days.”

Santiago argues that the ALJ erred by not giving controlling

weight to the opinions of D r . Naprta, Santiago’s treating

physician. “If [the ALJ] find[s] that a treating source’s

opinion on the issue(s) of the nature and the severity of [the

claimant’s] impairment(s) is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [his]

case record, [the ALJ] will give it controlling weight.”

(c)(2).2

2 By its terms, this rule does not apply to “opinions on issues that are reserved to the Commissioner because they are administrative findings that are dispositive of a case,” including “statement[s] by a medical source that [the claimant]

7 Here, as just discussed, the ALJ did not give controlling

weight to D r . Naprta’s opinions. The ALJ found those as to

Santiago’s RFC only “somewhat consistent with the medical

evidence on record” and “little or no support” in the record for

Dr. Naprta’s opinion that Santiago would need to be absent from

work 4 days each month. This approach would appear entirely in

accord with § 416.927(c)(2) which, again, requires an ALJ to give

controlling weight to a treating source’s opinions only insofar

as they are “well-supported.”

Santiago argues that, in declining to give controlling

weight to D r . Naprta’s opinions, the ALJ “fail[ed] to articulate

any reasoning susceptible to review.” But an ALJ need provide

only “‘good reasons in his decision for the weight he gave to the

[medical] opinions,’” even when those opinions come from a

is ‘disabled’ or ‘unable to work.’”

(d)(1). Thus, D r . Naprta’s opinions that Santiago was “medically disabled” or “unable to work” on February 8 , 2010 and August 2 6 , 2010 are entitled “no special significance.”

§ 416.927(d)(3). While, as Santiago points out, “a doctor’s opinion as to whether a claimant is disabled must not be disregarded,” Lord v . Apfel,

, 15 (D.N.H. 2000) (quotation marks omitted), the ALJ did not simply ignore D r . Naprta’s opinions that Santiago was at times “disabled” or “unable to work.” To the contrary, the ALJ noted that D r . Naprta had stated these opinions “without regard to any specific functional limitations” so that they “did not assist [the ALJ] in determining disability under the regulations.” The ALJ did not err in giving only “very limited weight” to D r . Naprta’s opinions that Santiago was “disabled” on two particular dates. 8 treating source. Chapin v . Astrue,

7 7 , 9 (quoting

Oldham v . Astrue,

(10th Cir. 2007)). The ALJ

did that here. As this court reads the ALJ’s decision, he found

Dr. Naprta’s opinions persuasive insofar as they were consistent

with D r . Jaffe’s (which, as already noted, were based on specific

entries in Santiago’s medical records) but unpersuasive insofar

as they were not. In other words, as the ALJ stated, D r .

Naprta’s opinions were “somewhat consistent with the medical

evidence on record.” And the ALJ’s rejection of D r . Naprta’s

opinion as to Santiago’s anticipated absences from work, because

it had “little or no support” in the record, is self-

explanatory.3

Indeed, while Santiago argues in his motion that the ALJ

erroneously failed to give controlling weight to D r . Naprta’s

opinions as to certain of Santiago’s functional limitations

(i.e., he could walk no more than a block without rest, he would

need to elevate his legs for 20-30% of each workday, and he would

need to miss 4 days of work each month), he does not identify any

3 Santiago attacks the ALJ’s observation that, despite D r . Naprta’s opinion that Santiago would need to miss several days of work each month, he “appears to be able to make all of his medical appointments.” Whatever the force of this reasoning, it does not change the fact that there is indeed “little or no support” in the record for D r . Naprta’s opinion as to how many days of work Santiago would need to miss each month.

9 evidence in the record that supports these opinions.4 Nor does

any support for those opinions appear in their source, D r .

Naprta’s RFC assessment. That assessment, completed on a form

provided by Santiago’s counsel, consists largely of checked “yes”

or “no” responses to a series of questions about Santiago’s

functional limitations--without explaining those answers by

reference to Santiago’s medical history or otherwise.5

The ALJ did not err, then, in refusing to give controlling

weight to D r . Naprta’s opinions as to Santiago’s functional

limitations, insofar as those opinions diverged from D r . Jaffe’s

and were otherwise unsupported by Santiago’s medical records. As

this court has recognized, an ALJ can rely “exclusively on the

4 Even in his reply memorandum, Santiago attempts to point to record support for only one of the opinions he accuses the ALJ of improperly rejecting, i.e., that Santiago would need to elevate his legs for 20-30% of each workday. This court ordinarily ignores arguments raised for the first time in reply. See Doe v . Friendfinder,

8 8 , 303 n.16 (D.N.H. 2008). Regardless, even the records relied upon in the reply would not have required the ALJ to accept, as “well-supported,” D r . Naprta’s opinion about Santiago’s need to elevate his legs. 5 Santiago nevertheless criticizes D r . Jaffe’s RFC assessment as “essentially devoid of commentary and medical reasoning” and including only “sparse notes summarizing a few records.” Because, as just noted, the same criticisms apply--and with even greater force--to D r . Naprta’s RFC assessment, the ALJ did not err in crediting D r . Jaffe’s. C f . Chapin,

7 7 , 11-12 (upholding ALJ’s choice between the opinions of two medical sources, neither of whom had reviewed all of claimant’s medical records).

10 assessments of non-testifying, non-examining physicians” in

adjudicating a claimant’s disability, and conflicts between those

assessments and other medical testimony “are for the ALJ to

resolve.” Morin v . Astrue,

9 1 , 9-10 (citing Berrios

Lopez v . Sec’y of HHS,

2 7 , 431-32 (1st Cir. 1991) and

Tremblay v . Sec’y of HHS,

1 , 12 (1st Cir. 1982)).

Furthermore, “[t]he ALJ decision to resolve that conflict against

the claimant should be affirmed if “‘that conclusion has

substantial support in the record.’”

(quoting Tremblay,

2 ) . Contrary to Santiago’s suggestion, “substantial

evidence” in this context means simply “such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion.” Richardson v . Perales,

(1971).

As just discussed, there is substantial evidence supporting the

ALJ’s decision to reject D r . Naprta’s opinions as to Santiago’s

functional limitations insofar as those opinions were

inconsistent with D r . Jaffe’s. If nothing else, unlike D r .

Naprta, D r . Jaffe buttressed his opinions with references to

Santiago’s medical records.

There is likewise substantial evidence supporting the ALJ’s

decision to give “very limited weight” to the opinions of a

psychologist who examined Santiago in June 2010, Jessica Stern.

As the ALJ noted, Stern concluded that Santiago “exhibit[ed]

11 moderate limitations in all functional areas.” These included

“task performance,” which Stern based on Santiago’s “reports

[that] he has some difficulty sustaining attention and forgets to

finish what he starts,” as well as that, during the examination,

“it was clear he had trouble maintaining attention and

understanding instructions.” Stern observed that Santiago’s

“attention and concentration are poor.”

The ALJ, however, found that Stern’s opinions as to

Santiago’s functional limitations were “not supported by the

medical evidence on record.” The ALJ noted that Santiago “made

very few complaints of mental health symptoms during the period

[of his claimed disability], and never sought counseling or

treatment,” as well as that Santiago “made no mention of mental

health limitations at the hearing,” where he “was easily able to

answer questions . . . and was able to offer a fairly detailed

work and medical history.”

Santiago argues that the ALJ erred through this

“substitution, based on interaction at a brief hearing, of his

own opinion about [ ] Santiago’s mental capabilities for that of a

trained expert who conducted a psychological examination.” But,

in giving very limited weight to Stern’s opinions, the ALJ did

not rely solely on his interaction with Santiago at the hearing:

he also relied on the lack of support in Santiago’s medical

12 records for any limitations in his mental functioning. Santiago

fails (as he did in trying to attack the ALJ’s decision not to

adopt D r . Naprta’s opinions in full) to identify anything in his

medical records that would have required the ALJ to reach a

different conclusion.6 S o , as just discussed with regard to D r .

Naprta’s opinions as to certain of Santiago’s physical

limitations, the ALJ properly relied on the lack of support in

Santiago’s medical records in rejecting Stern’s opinions as to

his mental limitations.

Contrary to Santiago’s argument, the ALJ also properly

relied on the fact that Santiago had never mentioned such

limitations to his treating providers, see, e.g., Dupuis v . Sec’y

of HHS,

2 2 , 624 (1st Cir. 1989), o r , for that matter,

at the hearing itself--at least where, as here, Santiago was

represented by counsel, see Faria v . Comm’r of Soc. Sec.,

, at *1 (1st Cir. Oct. 2 , 1998). Substantial evidence

supported the ALJ’s decision to give only very limited weight to

Stern’s opinions as to Santiago’s functional limitations.

6 Santiago points out that, both in a January 2010 treatment note and again in the April 2010 RFC assessment, D r . Naprta stated that Santiago suffered from “depression.” D r . Naprta did not, however, identify any functional limitations that Santiag depression imposed upon him, so these records do not, contraryo’s Santiago’s argument, support Stern’s view that he was moderatelyto limited in every (or any) area of mental functioning.

13 After crediting D r . Jaffe’s opinions (rather than the

contrary ones of D r . Naprta or Stern) as to Santiago’s functional

limitations, the ALJ found that Santiago retained the RFC to do

less than the full range of light work, as already noted. The

ALJ proceeded to rule that, considering this RFC, together with

Santiago’s age, education and work experience, there are jobs

that exist in significant numbers in the national economy that he

can perform. Santiago argues that the ALJ erred in reaching this

conclusion without the benefit of testimony from a vocational

expert. The Commissioner, however, argues that ALJ properly

relied solely on the Medical-Vocational Rules in reaching this

conclusion.

The Commissioner bears the burden of proving that a claimant

has the RFC to perform jobs that exist in significant numbers in

the national economy. See

(c)(2). In

meeting this burden, the Commissioner can rely solely on the

Medical-Vocational Rules, also known as “the Grid,” unless the

“claimant’s nonexertional impairment significantly affects [his]

ability to perform the full range of jobs at the appropriate

strength level.” Heggarty v . Sullivan,

9 0 , 996 (1st

Cir. 1991) (quotation marks omitted). Here, in relying solely on

the Grid, the ALJ found that this was not the case, i.e., that

Santiago’s “additional limitations have little or no effect on

14 the occupational base of unskilled light work.” Santiago argues

that this finding lacks substantial support in the record.

Specifically, Santiago argues that his ability to “only

stand and walk for two hours in an 8-hour workday” in fact

significantly limits his ability to perform the full range of

light work. To support this argument, he relies on a passage

from a Social Security ruling that “a job is in the [light work]

category when it requires a good deal of walking or standing--the

primary difference between sedentary and most light jobs.” SSR

83-10, Titles II and XVI: Determining Capability to Do Other

Work--The Medical-Vocational Rules of Appendix 2 ,

,

at *5 (S.S.A. 1983). As this court has previously noted,

however, SSR 83-10 itself “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.’” Dubois v . Astrue,

(quoting SSR 83-10,

, at * 5 ) . Thus, this court

reasoned, SSR 83-10 notwithstanding, an ALJ’s finding that the

claimant could stand or walk a maximum of three hours per day was

not “necessarily inconsistent” with the ALJ’s finding that the

claimant could perform less than the full range of light work.

at 1 3 ; see also Putnam v . Astrue,

, 10-11

15 (reaching the same conclusion where the ALJ found the claimant

could stand and walk up to one hour per d a y ) .

Likewise, an ALJ’s finding (like the one here) that a

claimant “can stand or walk for at least two hours . . . during

an 8-hour workday” (emphasis added) does not compel the

conclusion that he is significantly limited in his ability to

perform the full range of light work. This is particularly true

where the claimant’s treating physician opines that the claimant

can in fact stand or walk for about 4 hours per day (as D r .

Naprta did here) and, as the ALJ specifically noted, there was

evidence that the claimant walked for exercise.

There was substantial evidence to support the ALJ’s finding

that Santiago’s nonexertional impairment did not significantly

limit his ability to perform the full range of light work.7 So

the ALJ properly relied on the Grid, and the Grid alone, in

concluding that jobs that exist in significant numbers in the

national economy that Santiago can perform.

7 Santiago also argues that, in relying solely on the Grid, the ALJ disregarded the functional limitations that Stern, the psychologist, had identified. As just discussed, however, the ALJ gave very little weight to Stern’s opinion, and his decision to do so was supported by substantial evidence.

16 Based on the foregoing, Santiago’s motion to reverse the

ALJ’s decision8 is DENIED, and the Commissioner’s motion to

affirm that decision9 is GRANTED. See

(g). The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 2 9 , 2013

cc: Raymond J. Kelly, Esq. T . David Plourde, AUSA

8 Document n o . 9. 9 Document n o . 1 2 .

17