David B. Howard v. SSA 12-CV-497-SM 2/10/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David B. Howard, Claimant

v. Case No. 12-cv-497-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, David Howard,

moves to reverse or vacate the Commissioner's decision denying

his 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 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 2010, claimant filed an application for Disability

Insurance Benefits, alleging that he had been unable to work since October 31, 2008. That application was denied and claimant

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

In September of 2011, claimant and his attorney appeared

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

Four weeks later, the ALJ issued his written decision, concluding

that claimant retained the residual functional capacity to

perform the physical and mental demands of sedentary work,

"except the claimant is limited from performing more than simple,

repetitive tasks." Admin. Rec. at 37. Although claimant's

limitations precluded him from performing any of his past

relevant work, the ALJ concluded that there was still a

significant number of jobs in the national economy that he could

perform. I_d. at 40. Accordingly, the ALJ determined 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, which denied his request for review.

Accordingly, the ALJ's denial of claimant's application 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

2 by substantial evidence. He then filed a "Motion for Order

Reversing Decision of the Commissioner" (document no. 13). In

response, the Commissioner filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 15). Those

motions are pending.

II. Stipulated Facts.

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

submitted a "Joint Statement of Material Facts" which, because it

is part of the court's record (document no. 16), 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). See

also Irlanda Ortiz v. Secretary of Health & Human Services, 955

, 769 (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).

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 he is disabled under the Act.

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

the ALJ deployed the correct legal standards and found facts upon

the proper quantum 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.

4 1988); Rodriquez v. Secretary of Health & Human Services, 64 7

F .2d 218, 222 (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). 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 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. See Vazguez v. Secretary

5 of Health & Human Services,

(1st Cir. 1982) . See

also

(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 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d) (2) (A) .

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 his

alleged onset of disability: October 31, 2008. Admin. Rec. at

34. Next, he concluded that claimant suffers from the following

severe impairments: "a disorder of the right knee status post

right ACL repair [in] January 2011, with a second surgery in

August 2011, an adjustment disorder with depression and anxiety,

attention deficit hyperactivity disorder, and a personality

disorder." I_d. Nevertheless, the ALJ 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. Admin.

Rec. at 36.

Next, the ALJ assessed claimant's residual functional

capacity ("RFC") and concluded he retained ability to perform the

exertional demands of sedentary work, provided it involves no

7 more than performing simple, repetitive tasks.1 Admin. Rec. at

37. In light of those restrictions, the ALJ concluded that

claimant was not capable of returning to any of his prior jobs.

.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the Medical-Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P,

A p p . 2, tables 1-3 (also known as the "Grid"), as a framework,

the ALJ concluded that, notwithstanding claimant's exertional and

non-exertional limitations, he is capable of performing work that

exists in substantial numbers in the national economy.

Specifically, he determined that claimant's "additional

limitations have little or no effect on the occupational base of

unskilled sedentary work." I_d. at 40. Conseguently, he

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). concluded that claimant was not "disabled," as that term is

defined in the Act, through the date of his decision.

Discussion

This case is complicated somewhat by the fact that claimant

is proceeding pro se - a difficult task, given the complexity of

the administrative regulations and federal case law that govern

judicial review of Social Security benefit decisions. And,

unfortunately, he has not specifically identified any errors he

believes the ALJ made in reaching the conclusion that he was not,

prior to September 23, 2011, disabled within the meaning of the

Act. See generally Complaint (document no. 1) and Motion for

Order Reversing the Decision fo the Commissioner (document no.

13). In neither of those single-page documents does claimant

identify any errors - whether legal or factual - that he believes

the ALJ committed.

The Commissioner, to her credit, filed a lengthy and

thorough legal memorandum, in which she addresses the ALJ's

findings at each of the five analytical steps of the evaluation

process. And, as to each of those findings, the Commissioner has

explained (with record citations) why it is supported by

substantial evidence. The court has reviewed both the ALJ's written decision and the Commissioner's memorandum, and the court

has not identified any apparent legal or factual errors in the

ALJ's decision.

While the court is certainly sympathetic to Mr. Howard's

position, it cannot act as his lawyer. At the very least, the

Commissioner could legitimately complain should the court

endeavor to identify, argue, consider, and resolve legal

arguments it has posited. See generally Pliler v. Ford,

(2004). The court does, however, note that Mr.

Howard (at least arguably) implies that his condition may have

worsened since the ALJ's decision. See Claimant's Motion

(document no. 13) at 1 ("I am nc> longer able to work due to my

injury and psychological condition.") (emphasis supplied). It

is, then, conceivable that he may have a basis for filing a new

application for benefits - a matter he might consider discussing

with either his former counsel or new counsel.

Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant (such as

they are), the court concludes that there is substantial evidence

in the record to support the ALJ's determination that claimant

10 was not disabled at any time prior to the date of the ALJ's

written decision. As demonstrated by the Commissioner's

memorandum, the ALJ's findings at each of the five steps of the

analytical process are supported by substantial evidence.

The question before this court is not whether it believes

claimant is disabled and entitled to benefits. Instead, the

question presented is far more narrow: whether there is

substantial evidence in the record to support the ALJ's decision.

There is. Consequently, while there is certainly substantial

evidence in the record suggesting that claimant suffers from

significant emotional/psychological difficulties, as well as

periodic pain in his surgically repaired right knee and arthritic

left ankle, the existence of such evidence is not sufficient to

undermine the ALJ's decision, 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.").

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

decision of the Commissioner (document no. 13) is denied, and the

Commissioner's motion to affirm her decision (document no. )J5) is

granted. As noted above, if claimant's condition has

substantially worsened since the date of the ALJ's decision, he

might consider consulting with counsel about the possibility of

filing a new application for benefits.

The Clerk of the Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

zteven J/McAuliffe nited States District Judge

February 10, 2014

cc: David B. Howard, pro se Robert J. Rabuck, Esq.

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