UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela Mohr

v. Civil No. 14-cv-245-JD Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pamela Mohr seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the

Social Security Administration, denying her application for

social security disability benefits. Mohr moves to reverse and

remand the decision, contending that the Administrative Law

Judge (“ALJ”) erred in assessing her treating physician’s

opinion and in finding that she could do her past relevant work

at a telecommunications company. The Acting Commissioner moves

to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “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); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010). Substantial evidence, however, “does

not approach the preponderance–of-the-evidence standard normally

found in civil cases.” Truczinskas v. Dir., Office of Workers’

Compensation Programs,

(1st Cir. 2012).

Background

The background information is summarized from the parties’

joint statement of material facts.

Mohr filed for disability insurance benefits in January of

2012. When her application was denied initially, she requested

a hearing before an ALJ, which was held on May 14, 2013. Mohr

was fifty-seven years old at the time of the hearing. Her

educational background includes a four-year college degree and

prior work, until 2007, for a telecommunications company.

The medical record begins in January of 2011 when Mohr saw

her primary care physician, Dr. Andrew Sebastyan, because of

2 pain and numbness when she walked, a cough, a sleep problem, and

abdominal pain and nausea. Dr. Sebastyan found edema and

decreased sensation in Mohr’s legs and advised her to drink less

alcohol. Subsequent treatment notes by Dr. Sebastyan and Carol

Pelletier, APRN, DNP show that when Mohr presented with sleep

problems and other ailments, she was advised to drink less

alcohol but did not comply with that advice. Mohr also refused

to use a CPAP machine for sleep apnea.

In June of 2012, Dr. Sebastyan prepared a functional

assessment opinion for Mohr in which he diagnosed Mohr with

various ailments but did not mention Mohr’s use of alcohol.

With respect to function, Dr. Sebastyan wrote that Mohr had

frequent problems with concentration, could sit for only forty-

five minutes with a total of four hours in a work day, could

stand for five minutes with standing and walking for a total of

two hours in a work day, would need to elevate her legs at heart

level for sixty percent of a work day, and needed to use a cane.

He thought Mohr could occasionally lift ten pounds, had a

variety of reaching limitations, would have good and bad days,

and would be absent at least two days each month.

Mohr was represented by counsel and testified at the

hearing held in May of 2013. She said that foot pain kept her

3 from working, that she often had to lie down to reduce the pain,

swelling, and numbness in her legs, and that Dr. Sebastyan

suggested that she use a cane. Mohr also testified that she had

stopped drinking on January 1, 2013, and described her previous

work at a telecommunications company.

A vocational expert appeared and testified at the hearing.

The vocational expert said that Mohr’s description of her past

work sounded like a combination of two jobs listed in the

Dictionary of Occupational Titles, “laborer stores” and customer

service representative. Mohr’s attorney argued that dividing

the past job into two categories would be inappropriate.

The ALJ issued a decision on June 14, 2013, in which he

found that Mohr had severe impairments of alcoholic neuropathy,

sleep apnea, and obesity. He found that she had the residual

functional capacity to perform sedentary work with some postural

limitations and that she could do her past work at a

telecommunications company, as that work was actually performed.

Based on those findings, the ALJ concluded that Mohr was not

disabled. The Appeals Council denied review.

Discussion

Mohr contends that the ALJ’s decision must be reversed and

remanded because he erred in giving little weight to Dr.

4 Sebastyan’s opinion, in failing to consider Dr. Sebastyan’s

opinion about absenteeism, and in relying on a clerical error by

the Social Security Administration to find that Mohr could do

her past work. The Acting Commissioner moves to affirm, arguing

that the ALJ properly evaluated Dr. Sebastyan’s opinion and that

substantial evidence supports the ALJ’s finding that Mohr could

do her past work as it was actually performed.

Disability for purposes of a social security application

means the “inability 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 ALJ follows a five-step sequential analysis for determining

whether a claimant is disabled.

. The

claimant bears the burden through the first four steps of

proving that her impairments preclude her from working. Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

step, if the case is not resolved in the prior four steps, the

ALJ determines whether work that the claimant can do, despite

her impairments, exists in significant numbers in the national

economy and must produce substantial evidence to support that

5 finding. Seavey,

. A claimant cannot be awarded

benefits, however, if alcoholism or substance abuse was a

contributing factor to a finding of disability.

; Daniels v. Colvin,

, at *1 (D.N.H.

Nov. 21, 2014).

A. Medical Opinion Evidence

Mohr contends that the ALJ erred in failing to give

controlling weight to Dr. Sebastyan’s opinion based on a

mistaken finding that the opinion was inconsistent with the

record. She also contends that the ALJ erred in failing to

consider Dr. Sebastyan’s opinion about her absenteeism. The

Acting Commissioner argues that the ALJ properly considered and

evaluated Dr. Sebastyan’s opinion.

1. Treating source.

The ALJ is required to consider the medical opinions in a

claimant’s administrative record.

(b).

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source’s specialty, and other factors that may be brought to the

ALJ’s attention. § 404.1527(c). A treating medical source’s

6 opinion about the claimant’s impairment will be given

controlling weight if it “is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [the]

case record.” § 404.1527(c)(2).

In the residual functional capacity questionnaire, Dr.

Sebastyan wrote diagnoses of hypertension, hyperlipidemia,

hypothyroidism, polyrhythmia, obstructive sleep apnea, obesity,

edema, GERD, smoking, and neuropathy. Dr. Sebastyan did not

mention Mohr’s alcohol use in his diagnoses or his assessment of

residual functional capacity. Because of the diagnosed

ailments, Dr. Sebastyan found that pain would frequently

interfere with Mohr’s ability to attend and concentrate, that

she could sit for only forty-five minutes at a time for a total

of four hours and could stand for only five minutes at a time

for a total of two hours, that she would need breaks every

fifteen to thirty minutes, that she would need to elevate her

legs while sitting and would need to use a cane while walking,

that she could only occasionally lift up to ten pounds, and that

she would have significant limitations in reaching. In

addition, Dr. Sebastyan wrote that Mohr would have good days and

7 bad days and would likely be absent two days each month in good

weather and three days each month during the winter.

The ALJ reviewed Dr. Sebastyan’s opinions and acknowledged

that Dr. Sebastyan is Mohr’s treating physician.1 He gave little

weight to Dr. Sebastyan’s opinions, however, because the

opinions were inconsistent with some of Mohr’s treatment notes

and with Mohr’s description of her daily activities.

Specifically, the ALJ cited Dr. Sebastyan’s treatment notes

results from examinations during the applicable period that

indicated no edema, full ranges of motion, and normal

neurological. The ALJ also noted that Dr. Sebastyan failed to

mention Mohr’s alcohol abuse while his treatment notes diagnosed

alcohol abuse and found that alcohol abuse affected Mohr’s

polyneuropathy. The ALJ stated that although Dr. Sebastyan said

Mohr uses a cane in the residual functional capacity

questionnaire, there was no prescription for a cane in her

record and Mohr herself reported that she only used a cane to go

to the store.

1 Although Mohr mentions that an ALJ generally gives more weight to the opinions of a specialist, as provided by

(d)(5), she does not explain Dr. Sebastyan’s medical specialty. The record indicates that Dr. Sebastyan is Mohr’s primary care physician and does not otherwise show a specialty.

8 Mohr cites some treatment notes that indicate leg swelling

and neuropathy, which would support Dr. Sebastyan’s opinion. It

is the ALJ’s role, however, to weigh and resolve conflicts in

the evidence. Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991). The ALJ concluded that the

treatment notes were not consistent with Dr. Sebastyan’s

opinions, which is supported by the record.

In contrast to Dr. Sebastyan’s opinion that Mohr could only

sit for forty-five minutes at a time, the ALJ noted that Mohr

described her daily activities to include sitting in front of

the computer all day. The ALJ went on to summarize Mohr’s

description of her activities as a “fairly active lifestyle”

that includes, in addition to extensive computer use, the

ability to attend to her personal care, do housework although at

a slower pace, to drive a car, and to do her own grocery

shopping. The ALJ also noted that Mohr enjoyed cooking.

Mohr contends that her description of her daily activities

contradicts the ALJ’s finding that she had an “active

lifestyle.” Mohr misquotes the ALJ’s finding, which was that

she described a “fairly active lifestyle.” Mohr’s report of her

daily activities in her function report dated February 6, 2012,

supports the ALJ’s assessment.

9 The ALJ properly explained the weight attributed to Dr.

Sebastyan’s residual functional capacity assessment.

2. Opinion on absenteeism.

Mohr contends that the ALJ’s decision must be reversed

because he did not discuss Dr. Sebastyan’s opinion about her

absenteeism. In support, Mohr argues that because the ALJ did

not discuss Dr. Sebastyan’s opinion on absenteeism, he must have

substituted his own evaluation of the medical evidence for a

treating source’s opinion. Mohr contends that her case is

analogous to Walker v. Barnhart,

(D. Mass. Aug.

23, 2005).

In Walker, the ALJ properly explained the weight given to

the claimant’s treating sources’ opinions on psychological

limitations. Id. at *17. He did not reference or discuss

physical residual functional capacity assessments, one of which

included an opinion about absenteeism. Id. at *17. Because the

ALJ cited no record evidence to support his findings on the

claimant’s physical limitations due to fibromyalgia, the court

concluded that the ALJ substituted his own judgment for the

record evidence. Id. at *18.

In this case, the ALJ discussed Dr. Sebastyan’s opinion and

gave reasons for giving that opinion little weight. Although an

10 ALJ must consider all of the evidence in the record, an ALJ is

not required to discuss every piece of evidence as long as the

ALJ’s finding is supported by substantial evidence. Skellie v.

Colvin,

, at *6 (D.N.H. Feb. 27, 2015); Trumbull

v. Colvin,

, at *6 (D.N.H. Jan. 8, 2015); Perry v.

Colvin,

, at *2 (D.N.H. Sept. 23, 2014). More

specifically, an ALJ is not required to discuss every finding in

a medical opinion as long as the opinion was considered as part

of the administrative record and weighed as required by

§ 404.1527(c). Weisgarber v. Colvin,

, at *15

(E.D. Tenn. July 3, 2014); Budensiek v. Colvin,

,

at *6 (D. Md. Aug. 5, 2013). The ALJ did not err in failing to

discuss Dr. Sebastyan’s opinion about absenteeism.

B. Alcohol abuse.

In determining disability when the claimant abuses alcohol,

the ALJ must address an additional element. Caswell v. Colvin,

, at *6 (D.N.H. Sept. 24, 2014). That is because

a claimant is not eligible for benefits if alcoholism was a

material factor in the disability determination.

(d)(2)(C);

(a); Alker v. Colvin,

, at *7 (D.N.H. Feb. 20, 2014). The claimant bears the

burden of showing that her alcoholism was not a material factor

11 that contributed to the disability determination. Caswell,

, at *6.

The ALJ noted that Mohr’s treatment notes showed

“persistent issues with alcohol abuse” and found that she had a

severe impairment due to “alcoholic neuropathy.” The ALJ

concluded, however, that Mohr was not disabled because of her

impairments. Therefore, the ALJ appropriately did not consider

whether Mohr’s alcoholism was a material contributing factor to

disability.2

C. Previous Work

At Step Four of the sequential analysis, the ALJ determines

whether the claimant is able to do her past relevant work,

either as that work is categorized in the Dictionary of

Occupational Titles or as the work was actually performed by the

claimant. Santiago v. Sec’y of Health & Human Servs.,

(1st Cir. 1991). The claimant bears the burden of making a

2 If that analysis had been necessary, Mohr would not have carried her burden to show that alcoholism was not a material contributing factor. Although Mohr testified that she had stopped drinking on January 1, 2013, and that the swelling in her feet continued, she lacked any medical evidence to support her testimony. The ALJ supportably found, based on the record, including Dr. Sebastyan’s notes, that Mohr’s leg neuropathy was related to her alcohol abuse. As the ALJ noted, Dr. Sebastyan did not account for the effects of alcohol abuse in his opinion.

12 threshold showing that she cannot do her past relevant work.

; Chippendale v. Colvin,

, at *4 (D.N.H.

Jan. 15, 2015).

In her Disability Report, Mohr described her previous work

at the telecommunications company as “[s]uppl[ying] a service

provider with required tools and resources and overall support

for installation of network services.” With respect to the

exertional demands of the job, Mohr stated that she sat for

eight hours and that during that time she typed and handled

small objects that weighed less than ten pounds.

In contrast to that description, Mohr testified at the

hearing that her job at the telecommunications company was

“dedicated to the installers.” She said that when the

installers would have issues with materials “they would call

[her] and yell at [her]” and she would help them “track down

what it is they’re looking for.” If the installers could not

find what they needed, she would go to the warehouse to help.

She made arrangements to have materials sent to the installers

who were working all over New England. Mohr said that she spent

half of her time on the telephone and the other half helping the

installers find materials.

13 The vocational expert thought that the job Mohr described

at the hearing would be a “laborer, stores” combined with a

customer service representative. The vocational expert

testified that Mohr could do the customer service representative

part of the job with the residual functional capacity described

by the ALJ, limited to sedentary work, but could not do the

“laborer, stores” part because that required the ability to

medium exertional level work. There was a discussion about

whether the job could be divided into parts.

In his decision, the ALJ found that Mohr could do her past

job at the telecommunications company as she had described her

work in the Disability Report. Mohr contends that the ALJ

relied on a clerical error made by the Social Security

Administration in finding that she was able to do her past work.

Mohr argues that her past work as “laborer, stores,” as

identified by the vocational expert, was precluded by the

Dictionary of Occupational Titles description of a medium

exertional level because the ALJ limited her to sedentary work.

Mohr argues that the job as described in the Disability

Report, SSA Form 3368, was incorrect due to an error by “the

Social Security employee that completed SSA Form 3368.”

Specifically, Mohr contends that the employee erred in writing

14 that she sat for eight hours each day at work and that she never

stood or walked. Mohr provides no evidence, however, about who

completed the Report, which is neither dated nor signed.

“To obtain a disability determination by the SSA, an

individual must submit several related forms, including an

Application for Disability Insurance Benefits (Form SSA 16-F6)

(the ‘application form’) and a Disability Report-Adult (Form

SSA-3368-BK) (the ‘disability report’).” U.S. ex rel. Loughren

v. Unum Group,

(1st Cir. 2010). The

answers on Mohr’s Disability Report are typed. In response to

the question, “Who is completing this report?” the answer

written is: “The person who is applying for disability.”3 In

response to the question, “Are you currently working?” the

answer written is “No, I have stopped working.” Other questions

are also answered in the first person. As written, the

Disability Report appears to have been completed by Mohr.

Further, Mohr did not correct or withdraw the description of her

past work in the Disability Report but instead provided a

different description at the hearing without explaining the

discrepancy.

3 In contrast, the form that follows SSA 3368, Disability Report - Field Office - Form SSA-3367, was completed by “B. Smith” and was based on a face-to-face interview with Mohr.

15 The ALJ relied on the job description provided in the

Disability Report to find that Mohr could do her past relevant

work. There is no dispute that the job described in the

Disability Report involved sedentary work. Therefore, the ALJ’s

finding at Step Four is supported by substantial evidence.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

and remand (document no. 12) is denied. The Acting

Commissioner’s motion to affirm (document no. 14) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 1, 2015

cc: Roger D. Turgeon, Esq. Mark J. Alves, Esq. Robert J. Rabuck, Esq.

16