UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stephen John Langone, Claimant

v. Case No. 14-cv-89-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Stephen John

Langone, moves to reverse or vacate the Acting Commissioner’s

decision denying his application for Disability Insurance

Benefits (“DIB”) under the Social Security Act,

(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

On May 9, 2011, claimant filed an application for Disability

Insurance Benefits, alleging that he had been unable to work

since January 15, 2009, due to depression, anxiety, and bipolar disorder. That application was denied on August 23, 2011, and

claimant requested a hearing before an Administrative Law Judge

(“ALJ”).

On October 4, 2012, claimant — represented by counsel — his

wife, and a vocational expert appeared before an ALJ, who

considered claimant’s application de novo. On October 19, 2012,

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.

The Appeals Council denied claimant’s request for review,

making the ALJ’s denial of claimant’s applications the final

decision of the Acting Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

asserting essentially that the ALJ’s decision is not supported by

substantial evidence, the ALJ failed to adequately develop the

record, and claimant did not receive a full and fair hearing.

Claimant then filed a “Motion for Order Reversing the Decision of

the Secretary” (document no. 7). In response, the Commissioner

filed a “Motion for Order Affirming the Decision of the

Commissioner” (document no. 9). Those motions are pending.

2 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. 10), 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 Ortiz v. Sec’y of Health & Human Servs.,

(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.

3 Consolo v. Federal Maritime Comm’n.,

(1966);

see also Richardson v. Perales,

(1971).

This court’s review of the ALJ’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 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, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. See, e.g., Tsarelka v. Sec’y

of Health & Human Servs.,

(1st Cir. 1988);

Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981).

II. The Parties’ Respective Burdens

An individual seeking DIB 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

4 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. Sec’y of Health & Human Servs.,

(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, in light

of his age, education, and prior work experience. See Vazquez v.

Sec’y of Health & Human Servs.,

(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. Sec’y of Health &

Human Servs.,

(1st Cir. 1986); Goodermote v.

5 Sec’y of Health & Human Servs.,

(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 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

. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that claimant had not

been engaged in substantial gainful employment since his alleged

onset of disability: January 15, 2009. Admin. Rec. at 12. Next,

he concluded that claimant suffers from several impairments which

are “severe” in that they “impose significant limitations on the

6 claimant’s ability to perform basic work activities.”

They

are: “depression and anxiety.”

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 17. Of these findings,

claimant challenges the ALJ’s determination that his severe

impairments do not meet or medically equal the severity of one or

more of the listed impairments in Part 404, Subpart P, Appendix

1.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) “to perform a full range of work at

all exertional levels except that he is limited to simple-

unskilled work in a low stress environment (defined as being

limited to no change in the work setting and limited to no need

for the use of judgment), can sustain limited social interaction

with the general public and co-workers and occasional social

interaction with a supervisor and he is able to maintain

attention and concentration for two hour increments throughout an

eight hour work day.”1 Admin. Rec. at 14. Based on those

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

7 restrictions, and the vocational expert’s opinion based on the

hypothetical presented by the ALJ involving a worker with the

above-listed limitations, the ALJ concluded that claimant was not

capable of returning to his prior job. Id. at 16-17. However,

based on the vocational expert’s testimony, the ALJ concluded

that “[c]onsidering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs that

exist in significant numbers in the national economy that the

claimant can perform,” such as a laundry sorter, a housekeeper or

cleaner, or a garment folder. Id. at 17-18. Consequently, the

ALJ concluded that claimant was not “disabled,” as that term is

defined in the Act, through the date of his decision. Id. at 18.

Discussion

Claimant challenges the following aspects of the ALJ’s

decision: (1) his decision that claimant’s impairments,

separately or together, did not meet or medically equal any of

the listed impairments is not supported by substantial evidence;

(2) his RFC determination; (3) his determination that there are

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 jobs existing in significant numbers in the national economy that

claimant could perform; (4) his failure to properly develop the

administrative record in this case; and (5) his failure to give

claimant a full and fair hearing due to his alleged bias against

the testimony of claimant’s spouse.

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. Sec’y of Health & Human

Servs.,

(1st Cir. 1989) (citing Dudley v. Sec’y

of Health & Human Servs.,

(1st Cir. 1987)).

While claimant identifies his impairments - Panic Disorder with

Agoraphobia, Social Anxiety Disorder, and Severe Major Depressive

Disorder with Psychotic Features - 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. 7-1) at 9-16. Rather, claimant asks this court to reconsider

the medical evidence and the testimony presented at his hearing

de novo. As explained above, that type of review is not

available in this court. See supra at 3-4.

9 In his decision, the ALJ specifically (and thoroughly)

addressed each of claimant’s impairments and concluded that they

did not meet a listing level - either standing alone or in

combination. Admin. Rec. at 12-16. The court can discern no

error in the ALJ’s findings, which are supported by substantial

evidence in the record.

II. Claimant’s Residual Functional Capacity

Claimant also challenges the ALJ’s determination that he:

has the residual functional capacity to perform a full range of work at all exertional levels except that he is limited to simple-unskilled work in a low stress environment (defined as being limited to no change in the work setting and limited to no need for the use of judgment), can sustain limited social interaction with the general public and co-workers and occasional social interaction with a supervisor and he is able to maintain attention and concentration for two hour increments throughout an eight hour work day.

Admin. Rec. at 14.

Specifically, claimant contends that the ALJ’s finding that

claimant could maintain attention and concentration for two hours

is not supported by substantial evidence and that the ALJ failed

to consider evidence of certain limitations that claimant alleges

further restrict his functional capacity — such as his alleged

delusions of persecution, moderate or marked difficulty in

maintaining concentration, and side effects of his medication.

10 It is claimant’s burden to show that the limitations he claims

ought to factor into a RFC determination. See Boston v. Astrue,

No. 10-cv-250,

, at *28 n.19 (D.N.H.

June 22, 2011).

There is, to be sure, evidence in the record supportive of

claimant’s assertion that he is disabled and unable to maintain

concentration for two hours at a time. As he points out, his

testimony and that of his wife indicate that he plays bingo

online for only 15-20 minutes at a time and that “he can’t do

anything for any length of time.” Admin. Rec. at 32, 41.

However, there is also substantial evidence in the record to

support the ALJ’s residual functional capacity determination,

including that claimant is capable of maintaining attention and

concentration for two hour increments through an eight hour work

day. The report of agency psychological consultant, Dr. Laura

Landerman, Ph.D., suggests that claimant is “able to sustain

concentration and attention for two hour periods for simple

tasks.” Admin. Rec. at 54. Dr. Landerman’s report provides that

it is based on medical and other evidence received from

consulting agency examining psychologist, Dr. Juliana Read,

Ph.D., claimant’s treating doctor, Dr. Jayakumar Patil, M.D.,

11 treating physicians at Bedford Internal Medicine, claimant, and

claimant’s wife.

.

The ALJ was entitled to rely on Dr. Landerman’s report, as

it was clear that she had reviewed the medical evidence of

record. “[A]s a general matter, an ALJ may place ‘[g]reater

reliance’ on the assessment of a non-examining physician where

the physician ‘reviewed the reports of examining and treating

doctors . . . and supported [his] conclusions with reference to

medical findings.’” Ferland v. Astrue, No. 11-123,

, at *10-*11 (D.N.H. Oct. 31, 2011) (quoting

Quintana v. Comm’r of Social Security,

(1st Cir. 2004)); see also

(c)(3) (“[B]ecause

nonexamining sources have no examining or treating relationship

with you, the weight we will give their opinions will depend on

the degree to which they provide supporting explanations for

their opinions.”).2 Thus, the ALJ’s finding that claimant could

2 As the Commissioner conceded, although not raised by claimant, the ALJ erred in affording controlling weight to Dr. Landerman’s opinion. See Social Security Ruling (“SSR”) 96-2p,

, at *2 (July 2, 1996) (“[O]pinions from sources other than treating sources can never be entitled to ‘controlling weight.’”) However, the ALJ’s error was harmless because it is clear from his decision that he considered all the record evidence, and while he may have afforded greater weight to Dr. Landerman’s opinion than Dr. Read’s, for example, whose opinion the ALJ gave “great weight,” the ALJ is entitled to afford a non-treating source’s opinion greater weight than that of a treating source “in appropriate circumstances.”

12 maintain attention and concentration for two hour increments in

an eight hour work day is supported by substantial evidence.

Further, it is clear from the ALJ’s decision that he weighed

the medical evidence, including Dr. Lederman’s report, Dr.

Patil’s treating notes, and Dr. Read’s examination report, along

with the subjective reports by claimant and his wife, and that

his conclusion regarding claimant’s residual functional capacity

is supported by substantial evidence. Admin Rec. at 14-16.

While claimant contends that the ALJ selectively discounted

portions of especially Dr. Read’s report, including that he “may

suffer interference associated with his delusions of

persecution,” the ALJ properly discounted that opinion based on

Dr. Lederman’s report and Dr. Patil’s treating notes, which

provided that claimant’s mood was stable, that he was feeling

much better, and that his most significant source of stress was

his inability to find a job. Admin. Rec. at 206-12. Further, an

ALJ is free to reject medical source statements conditioned with

language like “may” based on independent findings such as Dr.

Patil’s notes and Dr. Lederman’s interpretation of the medical

evidence. See Estey v. Colvin, No. 13-45,

, at *5

(D. Me. Apr. 16, 2014). Further, the mental status exam

administered by Dr. Read on which claimant scored 29 (out of a

13 possible 30) and showed normal behavior, challenged by claimant

in this proceeding, is specifically contemplated by the

applicable regulations for assessing concentration, persistence,

and pace. See 20 C.F.R. Pt. 404, Sbpt. P, App’x 1 § 12.00(C)(3).

With respect to claimant’s allegation that the ALJ did not

afford sufficient weight to his complaints that the side effects

of his medication contributed to his diminished functional

capacity and his other self-reported complaints, the ALJ

concluded, as he is entitled to do, that claimant’s reports and

those of his wife were not wholly supported by the medical and

other objective evidence in the record. Admin. Rec. at 14. The

ALJ explained that the objective medical evidence, such as Dr.

Patil’s treating notes, did not support claimant’s current

complaints regarding the side effects of his medication, and that

claimant’s admitted daily activities were not consistent with his

subjective complaints. See Admin. Rec. at 15-16. The ALJ’s

credibility finding is supported by substantial evidence and

consistent with the applicable regulations and the Commissioner’s

interpretations of the same. See

; SSR 96-

7p,

, at *5-*6 (July 2, 1996).

14 III. Step 5 — the Hypothetical and Jobs in the National Economy

Claimant also challenges the hypothetical question the ALJ

posed to the vocational expert (“VE”). Specifically, he asserts

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

exertional limitations identified by some of the consulting

physicians and his and his wife’s testimony, he would have been

found disabled. He further asserts that it was error for the ALJ

to reject the response from the ALJ to a second, more limiting

hypothetical that the ALJ proposed to the VE at claimant’s

hearing.

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 in determining claimant’s RFC. Thus, because the ALJ

did not err in his RFC determination, the ALJ was not required to

accept the VE’s testimony that claimant would not be able to

perform any jobs in the national economy if he were off task

approximately 20 percent of the day and would be absent three or

more times per month, because the ALJ determined that those

limitations did not apply to claimant. See Phelps v. Astrue, No.

15 10-cv-240, 2011 U.S. Dist. LEXIS at *28-*29 (D.N.H. July 7,

2011).

As is often the situation in disability cases, here there is

substantial evidence to support claimant’s position that the

additional limitations should have been included in the ALJ’s

hypothetical to the VE. But, importantly, there is also

substantial evidence to support the ALJ’s decision to the

contrary.

IV. Development of the Administrative Record

Claimant contends that the ALJ failed to adequately develop

the Administrative Record in that he failed to request that

claimant’s treating physician perform a consulting examination

and that the ALJ failed to fully develop the record to include

objective clinical findings pertaining to claimant’s alleged

disabling conditions. Claimant’s contentions fail, as the record

in this case is sufficiently developed.

First, the Commissioner requested information from

claimant’s treating physician on June 2, 2011, and again on June

16, 2011. Admin. Rec. at 213. On July 9, 2011, Dr. Patil

responded with medical records pertaining to claimant. Id. at

214, 206-12. Second, on May 31, 2012, after Dr. Patil’s notes

16 and Dr. Lederman’s report were in the record, but before

claimant’s hearing, the Commissioner specifically informed

claimant’s attorney that it is his “responsibility to provide

medical evidence showing that [claimant] has an impairment(s) and

how severe it is.” Id. at 186. The letter to claimant’s

attorney then described the sort of medical evidence the attorney

should submit, if not already a part of the record. Id.

In cases such as this where claimant is represented by

counsel:

ordinarily an ALJ may rely on counsel to present the claimant’s case and to develop her claims. The Commissioner’s decision will not be reversed based on an ALJ’s failure to adequately develop the record absent a showing that the claimant was prejudiced by a gap in the evidence. To establish prejudice, the claimant must show that the missing evidence might have led to a decision in her favor.

Bica v. Astrue, No. 11-cv-86,

, at

*21-*22 (D.N.H. Nov. 17, 2011) (internal citations omitted).

Here, especially where the ALJ provided claimant with a

consultative examination, there is no missing evidence. Dr. Read

provided a consultative examination and opinion regarding

claimant’s alleged disabling conditions. Admin Rec. at 236-39.

The medical evidence in the record is substantial, including Dr.

Read’s examination and report, Dr. Patil’s treating notes that

17 describe claimant’s psychological presentation dating back to

less than two months after the alleged onset of his disability,

and Dr. Dupuis’ treating notes that do not suggest severe

disabling mental conditions.

; 206-39. Further,

claimant has failed to establish any prejudice resulting from the

fact that the consultative examination was performed by Dr. Read

rather than Dr. Patil. To the contrary, claimant urges this

court to rely on Dr. Read’s findings. Thus, the record is

adequately developed in this case and supports the ALJ’s

findings. See Ribeiro v. Barnhart,

(1st Cir.

2005) (stating that the ALJ only has “a duty to ‘develop an

adequate record from which a reasonable conclusion can be

drawn.’”)

V. Testimony By Claimant’s Wife

Claimant argues that he was denied a full and fair hearing

because the ALJ expressed a bias against the testimony of his

spouse and disregarded it in making his disability determination

without explanation.

“Due process requires an impartial decision-maker in

administrative as well as judicial proceedings.” Smith v.

Charter, No. 95-cv-121,

, at *5 (D.N.H. Mar. 12,

1996). However, there “is a presumption of honesty and integrity

18 in those serving as adjudicators . . . which plaintiff must

overcome to prevail on a claim of bias.”

(internal citations

and quotation marks omitted).

Here, claimant has not overcome the presumption of fairness.

While the ALJ stated that he ordinarily does not “take spousal

testimony” because he can “pretty much guess what she’s going to

testify about,” he permitted claimant’s wife to testify, and he

considered her testimony in rendering his RFC determination. Id.

at 16; 40-42. After thoroughly considering the evidence of

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

that of his wife, 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 wife’s testimony in any greater detail.

The Court of Appeals for the Seventh Circuit has addressed this

very point:

[Claimant’s] brother[‘s] testimony did not constitute a separate “line of evidence.” Rather, it served strictly to reiterate, and thereby corroborate, [claimant’s] own testimony concerning his activities and limitations. To the extent [the] ALJ found [claimant’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 [his brother’s] supporting testimony similarly not credible. [The] ALJ, therefore, did not err by declining to address [claimant’s brother’s] testimony specifically.

19 Books v. Chater,

(7th Cir. 1996); see also

Lindahl v. Barnhart, No. 02-cv-400,

, at *6

(D.N.H. Aug. 21, 2003).

Thus, while there is evidence in the record to support

claimant’s assertions of disabling impairments, there is

also substantial countervailing evidence supporting the

ALJ’s conclusion that claimant is not totally precluded from

all gainful activity. Consequently, there is no basis for

the court to vacate the ALJ’s conclusion.

Conclusion

This court’s review of the ALJ’s decision is 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 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 in this case - the

court must sustain those findings even when there may also

be substantial evidence supporting the contrary position.

20 Such is the nature of judicial review of disability benefit

determinations. See, e.g., Tsarelka v. Sec’y of Health &

Human Servs.,

(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.”); Rodriguez v. Sec’y

of Health & Human Servs.,

(1st Cir. 1981)

(“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.”).

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,” as that term is used in

the Act, at any time prior to the date of his decision

(October 19, 2012).

For the foregoing reasons, as well as those set forth

in the Acting Commissioner’s legal memorandum, claimant’s

motion to reverse the decision of the Commissioner (document

no. 7) is denied, and the Acting Commissioner’s motion to

21 affirm her decision (document no. 9) 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

February 6, 2015

cc: Vincent A. Wenners, Jr., Esq. Robert J. Rabuck, Esq.

22