UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Gelinas

v. Civil No. 17-cv-387-JL Opinion No.

U.S. Social Security Administration, Acting Commissioner

ORDER ON APPEAL

Richard Gelinas has appealed the Social Security

Administration’s (“SSA”) denial of his application for a period

of disability and disability insurance benefits between the date

he alleged his disability began and the onset date determined by

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

that, despite several severe impairments, Gelinas retained the

residual functional capacity (“RFC”) to perform jobs that exist

in significant numbers in the national economy between March 15,

2013, and August 26, 2015, and thus was not disabled during that

period.1 See

(a), 416.905(a). The Appeals

Council denied Gelinas’s request for review, with the result

that the ALJ’s decision became the final decision on his

application, see

§ 404.981. Gelinas then appealed the

1 The ALJ determined that Gelinas was disabled beginning on August 26, 2015. decision to this court, which has jurisdiction under

(g) (Social Security).

Gelinas has moved to reverse the ALJ’s decision. See

LR 9.1(b). The Acting Commissioner of the SSA has cross-moved

for an order affirming the decision. See LR 9.1(c). After

careful consideration, the court denies Gelinas’s motion and

grants the Acting Commissioner’s motion.

Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,”

that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). “Substantial-evidence review is more

deferential than it might sound to the lay ear: though

certainly ‘more than a scintilla’ of evidence is required to

meet the benchmark, a preponderance of evidence is not.” Purdy

v. Berryhill,

(1st Cir. 2018) (quoting Bath Iron

2 Works Corp. v. U.S. Dep’t of Labor,

(1st Cir.

2003)).

Thus, though the evidence in the record may support

multiple conclusions, the court will still uphold the ALJ’s

findings “if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adequate to support his

conclusion.” Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991). The court therefore “must

uphold a denial of social security . . . benefits unless ‘the

[Acting Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of

Health and Human Servs.,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

Background2

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Gelinas’s request for disability

and disability insurance benefits. See

,

416.920. After determining that Gelinas had not engaged in

substantial gainful activity after the alleged onset of his

disability on March 15, 2013, the ALJ analyzed the severity of

2 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (doc. no. 14) is incorporated by reference.

3 his impairments. At this second step, the ALJ concluded that

Gelinas had the following severe impairments:

spondyloarthropathy with chronic back pain and radiculopathy; L5-S1 degenerative disc disease with protrusion; moderate to severe diffuse lumbar spine facet joint osteoarthritis; gout; diabetes; hypertension; morbid obesity; status post cerebral hemorrhage; learning disability; depression; bilateral knee osteoarthritis with very mild narrowing of medical joint compartments, left knee flattening of the lateral femoral condyle with osteophyte off lateral left tibial plateau; right knee osteophyte emanating off tibial plateau; DVT (deep vein thrombosis; right ankle osteoarthritis, Os trigonum fused to talas, advanced subtalar joint osteoarthritis; ankle talonavicular and calcaneocuboid joint osteoarthritis, Achilles and plantar calcaneal spurs; reading disorder; mild degenerative joint disease of bilateral hips, right, greater than left.3

At the third step, the ALJ found that Gelinas’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.4 See

(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926.

After reviewing the medical evidence of record, medical

opinions, and Gelinas’s own statements, the ALJ concluded that

he retained the RFC to perform sedentary work, see

(a) and 416.967(a), except that he could:

lift up to 20 pounds occasionally, and would only be able to stand or walk for a total of 2 hours in an 8- hour workday and sit for 6 hours, in an 8-hour

3 Admin. Rec. at 21-22. 4 Id. at 22-24.

4 workday. He was limited to occasional postural maneuvers. He would need to avoid exposure to extremes of heat or cold, wetness, humidity, excessive vibrations, and avoid even occasional exposure to unprotected heights and could not be around dangerous moving machinery. He retained the mental capacity for simple, unskilled tasks.5

Finding that, even limited in this manner, Gelinas was able to

perform jobs that exist in significant numbers in the national

economy between his alleged onset date and August 26, 2015, see

and 416.966, the ALJ concluded his

analysis and found that Gelinas was not disabled within the

meaning of the Social Security Act during that time period.6

The ALJ then refined Gelinas’s RFC, finding that, beginning

on August 26, 2015, “due to pain and medical treatment,

[Gelinas] would need frequent unscheduled breaks, and would be

off task 25% of the time and miss more than 3 days of work a

month.”7 Given those additional limitations, the ALJ concluded

Gelinas could perform no jobs that exist in significant numbers

in the national economy and thus was disabled.8

5 Admin. Rec. at 24. 6 Admin. Rec. at 32-33. 7 Id. at 30. 8 Id. at 33.

5 Analysis

Gelinas challenges the ALJ’s determination of his

disability onset date. Specifically, he contends that the ALJ

erred in concluding that he was not disabled between his alleged

onset date of March 15, 2013, and the ALJ’s determined onset

date of August 26, 2015. He further contends that the ALJ erred

by making that determination without consulting a medical

advisor. As outlined below, the ALJ did not err on either

front.

“The onset date of disability is the first day an

individual is disabled as defined in the Act and the

regulations.” Titles II & XVI: Onset of Disability (SSR 83-20),

1983-

, at *1 (S.S.A. 1983). The ALJ

is tasked with determining the claimant’s onset date of

disability.

Gelinas bears the burden of proving it.

; Purdy,

(claimant bears

burden of proof at first four steps of the five-step process).

“In disabilities of nontraumatic origin,” such as

Gelinas’s, “the determination of onset involves consideration of

the applicant’s allegations, work history, if any, and the

medical and other evidence concerning impairment severity.”

SSR 83-20 at *2.

In determining the date of onset of disability, the date alleged by the individual should be used if it is consistent with all the evidence available. When the

6 medical or work evidence is not consistent with the allegation, additional development may be needed to reconcile the discrepancy. However, the established onset date must be fixed based on the facts and can never be inconsistent with the medical evidence of record.

Id. at *3.

The ALJ concluded that Gelinas could perform sedentary work

with a variety of limitations until August 26, 2015, the date

Gelinas underwent an examination for lower back pain by Ms.

Stephanie Diamond PA-C, who observed that his back pain had

worsened, and who arranged for him to undergo EMG/NCS testing of

his bilateral lower extremities. Taking into account Gelinas’s

worsened back pain, the ALJ concluded that Gelinas could not

perform even sedentary work without missing several days a month

after August 26, 2015. In designating that as Gelinas’s onset

date, the ALJ thoroughly accounted for the medical evidence of

record, relying on the fact that the medical evaluations and

opinions prior to August 26, 2015 all support the conclusion

that Gelinas could perform sedentary work with a variety of

limitations.

Physical limitations. With respect to Gelinas’s physical

limitations, the ALJ cited a July 31, 2014 functional capacity

evaluation by J. Samson, MS, OTR/L, CWCE, CEAS, who opined that

Gelinas could perform a level of work consistent with sedentary

7 work with occasional postural limitations.9 Similarly,

Dr. Anthony Ippolito, Gelinas’s rheumatologist, indicated in

October 20, 2014, that while Gelinas suffered from arthritic

pain and fatigue, he was able to perform sedentary work with

physical limitations generally consistent with those in the

ALJ’s RFC determination for this period.10

The ALJ also considered the medical opinion of Dr. Steven

Olive, another of Gelinas’s treating physicians, who concluded

that Gelinas could perform work at the sedentary level in

February 2015. Finally, the ALJ accounted for the State agency

non-examining medical consultant, Dr. Barton Nault, who

concluded on August 19, 2014, that Gelinas could perform light

work with no limitations. The ALJ discounted that opinion,

affording it little weight for failure to account for Gelinas’s

subjective pain complaints.11

Gelinas challenges the fact that the ALJ discounted both

Samson’s and Dr. Ippolito’s conclusions that Gelinas could only

“occasionally” use his hands and arms. With respect to Samson,

the ALJ explained that he did so because “it seems the evaluator

only relied on the claimant’s subjective pain complaints” in

9 Admin. Rec. at 826-27. 10 Id. at 1055-56. 11 Id. at 29.

8 drawing that conclusion and because “the claimant was able to

perform well with his hands and he had a normal range of

motion.”12 And he discounted Dr. Ippolito’s conclusion as

inconsistent with the fact that Gelinas’s impairments related to

his back and legs and Dr. Ippolito’s finding of a normal

strength and range of motion.13

Gelinas also contends that, to the extent the ALJ afforded

great weight to a January 7, 2016 opinion by Dr. Ippolito with

respect to the post-August 2015 time period, he ought have

afforded the same weight to that January 7, 2016 opinion with

respect to the period before August 26, 2015. But, as the ALJ

observed, Dr. Ippolito’s opinions are inconsistent. He opined

in 2016 that Gelinas’s impairments prevented him from sitting

more than two hours and standing more than four hours, and that

his impairments would make him absent from work more than four

days per month.14 In 2016, he also opined that these impairments

had existed since March 15, 2013.15 In February 2015, by

contrast, Dr. Ippolito opined that Gelinas was capable of a

12 Id. at 27. 13 Id. at 29. 14 Id. at 1219-21. 15 Id. at 1217

9 range of sedentary work.16 The ALJ considered these

inconsistencies and concluded, based on Dr. Ippolito’s

February 2015 statement, that he “did not believe the

limitations began at the claimant’s alleged onset date.”17

Though Gelinas takes issue with the ALJ’s treatment of a

small aspect of both Samson’s and Dr. Ippolito’s reports, he

points to no other evidence in the record, unaddressed by the

ALJ, that contradicts those conclusions. Though these reports

may support the alternative conclusions proposed by Gelinas,

they also adequately support the ALJ’s conclusions. The court

will not disturb the ALJ’s findings under these circumstances.

Irlanda Ortiz,

.

Mental limitations. With respect to Gelinas’s mental

limitations, the ALJ relied on an August 12, 2014 consultative

psychological examination by Dr. Thomas F. Burns, PhD, and a

January 23, 2015 psychiatric evaluation by Dr. James Kates, MD.

The ALJ accorded Dr. Burns’s opinion weight as “consistent with

the claimant’s ability to perform unskilled tasks”18 and noted

that “there is nothing in [Dr. Kates’s] opinion to suggest that

[Gelinas] would not be able to perform unskilled mental tasks

16 Id. at 1055-57. 17 Id. at 31. 18 Admin. Rec. at 27.

10 due to his mental impairment.”19 Finally, the ALJ accounted for

the state agency non-examining psychological consult, Dr. Laura

Landerman, whose mental RFC assessment he found consistent with

the medical record and Dr. Burns’s conclusions.

The ALJ discounted Dr. Burns’s and Dr. Landerman’s

conclusions that Gelinas would not be able to read at all. In

doing so, he noted that Dr. Burns did not test Gelinas’s

literacy and relied only on self-reports inconsistent with the

fact that Gelinas completed high school with passing grades in

English, and that Dr. Landerman relied on Dr. Burns’s report.20

The ALJ concluded that, instead, Gelinas “is capable of very

basic reading and understanding simple instructions.”21

Gelinas argues that the ALJ erroneously rejected

Dr. Burns’s conclusion that Gelinas was illiterate.

Specifically, he contends that the fact that he completed high

school with a passing grade in English does not conclusively

establish his literacy. But it need not do so. Even on that

basis, the ALJ concluded only that Gelinas was “capable of very

basic reading and understanding simple instructions.”22 That

19 Id. at 28. 20 Id. 21 Id. at 29. 22 Id.

11 conclusion is consistent with Gelinas’s representation to

Dr. Kates that he “could only read at the first grade level.”23

Here, again, some evidence in the record -- specifically,

Gelinas’s own testimony -- may support an alternative

conclusion; but where the ALJ’s is supported by substantial

evidence, as it is here, the court will not disturb it.24

Irlanda Ortiz,

.

Medical advisor. Finally, Gelinas argues that the ALJ

erred by establishing an August 26, 2015 disability onset date

without consulting a medical advisor.25 “Where ‘precise evidence

is not available’ and thus there is a ‘need for inferences,’ SSR

83-20 instructs the ALJ to call a medical advisor.” Fischer v.

Colvin,

(1st Cir. 2016) (quoting SSR 83-20,

, at *3) (alterations omitted). Here, however, as in

Fischer, “[t]he ALJ did not rely upon the absence of medical

evidence but rather the existence of ‘precise’ medical evidence

23 Id. at 904. 24Gelinas suggests that the ALJ erred because he did not contact Gelinas’s former employer to obtain more evidence concerning his limited ability to read and write. See Plaintiff’s Mem. (doc. no. 10-1) at 5. But the burden of proving his limitations at this stage rests on Gelinas, not the ALJ.

; Purdy,

. In any event, evidence of a limited ability to read and write would be consistent with the ALJ’s conclusion that Gelinas was capable only of “very basic reading.” 25 Plaintiff’s Mem. (doc. no. 10-1) at 11.

12 . . . when concluding that [Gelinas’s] impairments had not

reached disabling severity prior to” August 26, 2015. Here, the

ALJ had the benefit of, and relied on, several medical opinions,

issued prior to that date, to the effect that Gelinas could

perform a range of sedentary work. “This precise medical

evidence eliminated the need for the ALJ to infer that

[Gelinas’s] onset date preceded” August 26, 2015.

Conclusion

For these reasons, the Acting Commissioner’s motion to

affirm26 is GRANTED and Gelinas’s motion to reverse and remand

the Acting Commissioner’s decision27 is DENIED. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 6, 2018

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

26 Document no. 13. 27 Document no. 10.

13