Angelia M. Newell v. SSA 12-CV-480-SM 2/10/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Angelia Marie Newell, Claimant

v. Case No. 12-cv-480-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

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

Angelia Newell, moves to reverse or vacate the Commissioner's

decision denying her application for Supplemental Security Income

Benefits under Title XVI of the Social Security Act,

-1383c (the "Act"). The Commissioner objects and moves for

an order affirming her decision.

For the reasons discussed below, claimant's motion is

denied, and the Commissioner's motion is granted.

Factual Background

I. Procedural History.

In 2008, claimant filed an application for Supplemental

Security Income ("SSI"), alleging that she had been unable to work since June 25, 2000. She subsequently amended that date to

February 26, 2008. That application was denied and claimant

requested a hearinq before an Administrative Law Judqe ("ALJ").

In October of 2009, the ALJ held a hearinq and, approximately one

month later, issued a decision in which he concluded that

claimant was not disabled under the Act. The Decision Review

Board selected claimant's application for review and, on February

12, 2010, remanded the case to the ALJ for a new hearinq and

decision.

The ALJ held a second hearinq in May of 2011, at which

claimant, her attorney, and an impartial vocational expert all

appeared. Approximately two months later, the ALJ issued a new

decision, aqain findinq that claimant was not disabled within the

meaninq of the Act. The Appeals Council denied claimant's

request for review and the ALJ's adverse decision became the

final decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

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

evidence and seekinq a judicial determination that she is

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

"Motion for Order Reversinq Decision of the Commissioner"

(document no. 10). In response, the Commissioner filed a "Motion

2 for 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. 15), 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 &

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

3 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).

This court's review of the ALU's decision is, therefore,

both limited and deferential. The court is not empowered to

consider claimant's application de novo, nor may it undertake an

independent assessment of whether she is disabled under the Act.

Rather, the court's inguiry is "limited to determining whether

the ALJ deployed the correct legal standards and found facts upon

the proper guantum of evidence." Nguyen v. Chafer,

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

supported by substantial evidence, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. See, e.g., Tsarelka v.

Secretary of Health & Human Services,

(1st Cir.

1988); Rodriguez v. Secretary of Health & Human Services, 64 7

F .2d 218, 222 (1st Cir. 1981).

4 II. The Parties' Respective Burdens.

An individual seeking SSI 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." 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 work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

she can perform. See Vazguez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) .

5 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.

42 U.S.C. § 1382c(a)(3)(B).

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

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

decision.

6 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 seguential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since her

alleged onset of disability: February 26, 2008. Admin. Rec. at

10.1 Next, he concluded that claimant suffers from the following

severe impairments: "morbid obesity; compression fractures T8 to

112; lordosis/scoliosis of the lumbar spine." M. Nevertheless,

he determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

medically egual one of the impairments listed in Part 404,

Subpart P, Appendix 1. I_d. at 16.

Although the ALJ devoted substantial attention to evidence

concerning claimant's alleged hemiplegic migraines, he ultimately

determined that "the conclusion that the claimant possibly has

hemiplegic migraines is not supported by objective testing and

1 The ALJ's decision contains a minor typographical error, suggesting that the date of claimant's alleged onset of disability is February 28, 2008, rather than February 26, 2008. That error is harmless and appears to stem from discussions between claimant's attorney and the ALJ during the October 2, 2009, hearing. See Admin. Rec. at 84-85.

7 the physical examinations associated with the condition find that

the claimant's presentations are unreliable." Admin. Rec. at 13-

14. Accordingly, he concluded claimant's condition does not

constitute a "medically determinable impairment." M. at 13.

Nevertheless, he went on to conclude that even assuming claimant

does suffer from "a medically determinable impairment of

hemiplegic headache[s], the totality of the record establishes

that the condition is not severe" because "claimant's headaches

do not significantly limit her ability to perform basic work

activities." M. at 14. As discussed below, claimant challenges

that finding.

Next, the ALJ concluded that claimant retained the residual

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

a range of light work.2 In support of that conclusion, the ALJ

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). cited, among other things, the Medical Source Statement from

claimant's treating orthopedist. Dr. Mark Geppert. Dr. Geppert

opined that claimant retains the ability to perform a range of

full-time work, in a position that reguires freguent sitting, and

only occasional standing and/or walking. I_d. at 18. See also

Admin. Rec. at 1553. The ALJ also relied upon the medical

opinions offered by the non-examining medical consultant. Dr.

Joseph Cataldo, who also opined that claimant retains the ability

to perform a range of light work. I_d. at 19. See also Id. at

1529-36.

Finally, the ALJ noted that claimant had no past relevant

work history and considered whether there were any jobs in the

national economy that she might perform. Relying upon the

testimony of a vocational expert, the ALJ concluded that,

notwithstanding claimant's exertional and non-exertional

limitations, she "is capable of making a successful adjustment to

other work that exists in significant numbers in the national

economy." Admin. Rec. at 24. Accordingly, the ALJ concluded

that claimant was not "disabled," as that term is defined in the

Act, at any time since her alleged onset date. Discussion

Claimant challenges the ALJ's decision on two grounds,

asserting that he erred by: (1) failing to recognize that her

hemiplegic migraines constitute a "severe impairment," and (2)

failing to properly consider the effect of her obesity on her

ability to perform physical activities.

I. Claimant's Migraine Headaches.

"It is well established in this circuit 'that the Step 2

severity reguirement is . . . to be a de minimus policy, designed

to do no more than screen out groundless claims.'" Mohammad v.

Astrue,

, at *7 (D.N.H. April 4, 2011) (guoting

McDonald v. Secretary of Health & Human Services,

(1st Cir. 1986)). Given the relatively low threshold

established by the step two inguiry, claimant says the ALJ erred

when he concluded that her alleged hemiplegic migraines do not

constitute a "severe impairment." Whether the ALJ did, in fact,

err at step two is a close call - a point on which reasonable

minds could certainly disagree. But, even assuming he did err,

it is plain from the record that his error was harmless.

At step two of the seguential inguiry, the ALJ supportably

concluded that claimant's hemiplegic migraines either fail to

10 rise to the level of a medically determinable impairment and/or

cause no more than minimal limitations on claimant's ability to

perform basic work activities. The administrative record in this

case - including claimant's voluminous medical records - spans

more than 2,500 pages. And, the ALJ thoroughly discussed

claimant's medical history and cited substantial record evidence

in support of his conclusions about her migraines. See Admin.

Rec. at 11-14 (noting, for example. Dr. Dirksmeier's opinion that

claimant's hemiplegic symptoms were "completely unreliable" based

upon claimant's inconsistent effort during testing (I_d. at 444);

Dr. Lallana's observation that "exam findings are not consistent

with true weakness" (_Id. at 1044); and the existence of MRI and

CT scans that reveal no structural pathology that might explain

claimant's hemiplegic symptoms). The ALJ also noted the several

references in the record to the likelihood that claimant's

limitations stem from a somatoform disorder, claimant's repeated

reports to medical providers of having suffered a "stroke" when

no evidence of such a stroke exists, and references in treatment

records to her "strong history of Munchausen syndrome in the

past." See, e.g.. Id. at 1057-58.

11 Importantly, however, even assuming the ALJ did err at step

two, that error was harmless. As this court (DiClerico, J.) has

noted:

[A]n error at Step Two will result in reversible error only if the ALJ concluded the decision at Step Two, finding no severe impairment. If instead the ALJ continued through the remaining steps and considered all of the claimant's impairments in making those additional findings, any error at Step Two is harmless. In contrast, a decision will be reversed if an ALJ errs by omitting a severe impairment at Step Two and then also fails to consider the effects of that impairment in the following steps, leaving the decision without substantial support in the record.

Syms v. Astrue,

at *1,

at 3 (D.N.H.

Sept. 8, 2011) (citations and footnote omitted). See also

Montore v. Astrue,

at *4,

(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).

Here, it is plain that the ALJ thoroughly considered

claimant's non-severe impairments - including her migraine

headaches - and discussed each at length in reaching the

conclusion that none adversely affected her residual functional

capacity. See, e.g.. Admin. Rec. at 18 ("While the undersigned.

12 upon assessing the claimant's residual functional capacity, did

take into consideration her non-severe impairments (left shoulder

impairment, headaches, and adjustment disorder), as noted above,

the undersigned finds no evidence supportive of a need for

further reduction of the above-noted functional capacity."). See

generally

(a)(2).

Claimant's first assertion of error is, therefore, without

merit. Even if the ALJ did err at step two of the seguential

analysis by failing to recognize her hemiplegic migraine

headaches as a "severe" impairment, that error was harmless

because he took those headaches into account when he subseguently

determined her RFC. And, that RFC determination is supported by

substantial evidence in the record, including expert medical

opinions, objective medical findings and results of diagnostic

imaging, claimant's activities of daily living, and the nature

and course of her treatment. See Admin. Rec. at 17-22. Finally,

in determining claimant's RFC, the ALJ gave adeguate explanation

for his decision to discount those medical opinions in the record

that suggested claimant's headaches might impair her ability to

engage in substantial gainful activity. See, e.g.. Id. at 19

(discussing the reasons he afforded little weight to the opinions

of Dr. Alison Baker).

13 II. Claimant's Obesity.

Next, claimant asserts that the ALJ erred by failing to

properly consider her obesity when determining her ability to

perform physical activities. As she points out, an ALJ is

reguired to make an assessment "of the effect obesity has upon

the individual's ability to perform routine movement and

necessary physical activity within the work environment." SSR

02-IP, Titles II and XVI: Evaluation of Obesity,

at *6 (Sept. 12, 2002). But, there is certainly adeguate

evidence in the record to support the conclusion that the ALJ met

that obligation.

First, at step two, the ALJ concluded that claimant's

obesity constitutes a severe impairment. Admin. Rec. at 10, and

noted that her pain symptoms are "exacerbated by her morbid

obesity," id. at 11. Next, the ALJ took claimant's obesity into

account when determining her RFC, noting again that her obesity

"certainly aggravates her symptoms," id. at 18, and recognizing

that her obesity "credibly limit[s] her ability to stand and/or

walk." Accordingly, he concluded that claimant was capable of

only "occasional standing and/or walking." I_d. at 18.

14 Moreover, in making his RFC determination, the ALJ also

relied upon the professional medical opinions of claimant's

treating orthopedist and the non-examining medical consultant -

both of whom took claimant's obesity into account in assessing

her ability to perform work-related functions. Admin. Rec. at

18-19. See also Id. at 1553-54 (Dr. Geppert's opinion that

claimant can lift up to 20 pounds occasionally, sit for up to

eight hours per day, stand for up to two hours per day, and walk

for up to one hour per day); Id., at 1529-36 (Dr. Cataldo's

similar opinions). As various courts (including this one) have

noted, even when an ALJ fails to specifically discuss a

claimant's obesity (not the case here), it is sufficient if he or

she relies upon the opinions of medical experts who have taken

the claimant's obesity into consideration. See, e.g., Drake v.

Astrue,

(2d Cir. 2011) ("[W]e agree with

the District Court that the ALJ implicitly factored [claimant's]

obesity into his RFC determination by relying on medical reports

that repeatedly noted [claimant's] obesity and provided an

overall assessment of her work-related limitations."); Skarbek v.

Barnhart,

(7th Cir. 2 004) ("[T]he ALJ

adopted the limitations suggested by the specialists and

reviewing doctors, who were aware of [claimant's] obesity. Thus,

although the ALJ did not explicitly consider [claimant's]

15 obesity, it was factored indirectly into the ALJ's decision as

part of the doctors' opinions."). See also Rutherford v.

Barnhart,

(3d Cir. 2005); Benitez v. Astrue,

at *4 (D.Ma., Dec. 20, 2011); Young v. Astrue,

at *11-12,

(D.N.H. Sept. 15, 2011) .

Here, not only did the ALJ specifically address claimant's

obesity (and found it constitutes a "severe impairment"), he also

relied upon the expert opinions of medical professionals who had

taken her obesity into account in assessing her ability to

perform work-related activities.

Finally, as the Commission points out, claimant has failed

to identify any additional physical limitations imposed by her

obesity that might call the ALJ's RFC determination into

question. See

(c) ("You must provide evidence

. . . showing how your impairment(s) affects your functioning

during the time you say that you are disabled."). See also

O'Dell v. Astrue,

(D.N.H. 2010) ("It was

up to [claimant] to specifically allege how his obesity affected

his ability to work during the period in question, and he failed

to meet that burden.").

16 Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the 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. Even if the ALJ

erred at step two by failing to recognize claimant's alleged

hemiplegic migraines as "severe," that error was harmless since

he went on to consider the effect of those headaches on her

residual functional capacity. And, the record reveals that the

ALJ gave more than adeguate consideration to claimant's obesity

and its impact on her RFC.

As noted above, the guestion before this court is not

whether it believes claimant is disabled and entitled to

benefits. Instead, the guestion presented is far more narrow:

whether there is substantial evidence in the record to support

the ALJ's decision. There is.

Claimant's lengthy medical history and the treatment she has

received from numerous medical care providers are well documented

in her voluminous medical records. And, that record certainly

contains substantial evidence suggesting that she has difficulty

17 performing basic work activities. But, the existence of such

evidence is not sufficient to undermine the ALJ's lengthy,

thorough, and well-documented adverse disability determination,

which is also supported by substantial evidence. 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."); Rodriguez, 647 F.2d at 222

("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 adeguate to support his conclusion."). See

also Andrews v. Shalala,

(9th Cir. 1995)

("We must uphold the ALJ's decision where the evidence is

susceptible to more than one rational interpretation.").

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

Commissioner's memorandum, the court concludes that the ALJ's

adverse disability decision was supported by substantial

evidence, despite the existence of evidence in the record that

could support a different conclusion. Claimant's motion to

18 reverse the decision of the Commissioner (document no. _10_) is,

therefore, denied, and the Commissioner's motion to affirm her

decision (document no. .13J is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Sj/even J./McAuliffe Sj^even (United States District Judge

February 10, 2014

cc: D. Lance Tillinghast, Esq. Robert J. Rabuck, Esq.

19