UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Wayne Eldridge, Claimant

v. Case No. 14-cv-248-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,

David Wayne Eldridge, moves to reverse or vacate the Acting

Commissioner’s decision denying his applications for Disability

Insurance Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI,

and 1381-1383c (collectively, 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

In December 2011, claimant filed applications for Disability

Insurance Benefits and Supplemental Security Income, alleging

that he had been unable to work since November 12, 2008. Those

applications were denied, and claimant requested a hearing before

an Administrative Law Judge (“ALJ”).

In June 2013, claimant, represented by an attorney, and a

vocational expert appeared before an ALJ, who considered

claimant’s application de novo. Ten days later, the ALJ issued

her written decision, concluding that claimant was not

“disabled,” as that term is defined in the Act. Claimant then

sought review of the ALJ’s decision by the Appeals Council. His

request was denied. Accordingly, the ALJ’s denial of claimant’s

applications for benefits became the final decision of the Acting

Commissioner, subject to judicial review. Subsequently, claimant

filed a timely action in this court, asserting that the ALJ’s

decision is not supported by substantial evidence. Claimant then

filed a “Motion for Reversal of Commissioner’s Denial of

Benefits” (document no. 15). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 17). Those motions are now

ripe.

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. 18), 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. 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

3 substantial evidence. 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 correct 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 Social Security disability and

supplemental security income 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

4 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);

see also 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. Sec’y of Health & Human Servs.,

(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, in light of her age,

education, and prior work experience. See Vazquez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1982); see also

(f) and 416.912(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,

5 age, and work experience. See, e.g., Avery v. Sec’y of Health &

Human Servs.,

(1st Cir. 1986); Goodermote v.

Sec’y of Health & Human Servs.,

(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.

(d)(2)(A) (emphasis supplied); see also 42 U.S.C.

§ 1382c(a)(3)(B).

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

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: November 12, 2008. Admin.

6 Rec. at 13. Next, she concluded that claimant suffers from the

following severe impairments: “degenerative changes of the lumbar

spine with mild scoliosis, hypertension and obesity.”

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. Id. at

16. Claimant does not challenge any of those findings.

Then, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

a range of light work.1 She noted, however, that he:

Cannot climb ladders, ropes or scaffolds. He is limited to occasional climbing of ramps and stairs. He can occasionally balance, stoop, kneel, crouch and crawl. He needs to avoid concentrated exposure to temperature extremes, hazards and vibration. He can perform uncomplicated tasks for 2-hour[ ] periods throughout an 8-hour workday and 40-hour workweek, but due to decreased concentration, persistence and pace

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 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).

7 would have decreased production. This would not be at a level greater than 10% below the norm.

Admin. Rec. at 16. The ALJ also noted that “claimant is unable

to perform any past relevant work.” Id. at 18.

Finally, at step five of the analysis, the ALJ considered

whether there were any jobs in the national economy that claimant

might perform. Relying upon the testimony of a vocational expert

(“VE”), the ALJ concluded that, notwithstanding claimant’s

exertional and non-exertional limitations, and “considering the

claimant’s age, education, work experience, and residual

functional capacity, [he] is capable of making a successful

adjustment to other work that exists in significant numbers in

the national economy,” including several representative

occupations identified in her order. Id. at 19. Consequently,

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

is defined in the Act, through the date of her decision (June 28,

2013). Id.

Discussion

Claimant challenges the ALJ’s decision on essentially three

grounds, asserting that she erred by: (1) incorrectly determining

his residual functional capacity; (2) improperly evaluating the

8 testimony of the VE; and (3) improperly evaluating his age and

work history.

I. Claimant’s Residual Functional Capacity

Claimant first challenges the ALJ’s determination that he

was capable of performing a range of light work, asserting that

the “ALJ failed to give any weight to . . . Mr. Eldridge’s

complaints about back, right arm, and knee pain” and

“inappropriately considered the lack of medical treatment when

Mr. Eldridge could not afford ongoing treatment while also

discounting the medical evidence in existence.” Claimant’s Mem.

at 6. He further claims that the ALJ impermissibly “developed an

opinion on RFC on her own,” without considering the treating or

consultative physicians’ opinions. Id. at 11. Consequently, he

claims that the ALJ’s RFC determination was not supported by

substantial evidence. Id.

In her decision, the ALJ explained that “[a]fter careful

consideration of the entire record,” she found that:

claimant has the residual function capacity to perform light work . . . except the claimant cannot climb ladders, ropes or scaffolds. He is limited to occasional climbing of ramps and stairs. He can occasionally balance, stoop, kneel, crouch and crawl. He needs to avoid concentrated exposure to temperature extremes, hazards and vibration. He can perform uncomplicated tasks for 2-hour[ ] periods throughout an 8-hour work day and 40-hour workweek, but due to decreased concentration, persistence and pace he would

9 have decreased production. This would not be at a level greater than 10% below the norm.

Admin. Rec. at 16.

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

claimant’s assertion that he is disabled. As he notes, he has

pain in his lower back, right arm, and right knee most if not all

of the time. But, it is also clear that the ALJ considered the

medical evidence in the record and that substantial evidence

exists in the record to support the ALJ’s conclusion that he is

capable of engaging in substantial gainful activity at the level

of light work with the stated limitations.

First, the ALJ adequately supported her conclusion that

claimant’s subjective complaints of disabling pain were “not

entirely credible” because they were “not substantiated by

objective medical evidence.” Admin. Rec. at 17. While claimant

testified at the hearing and contends in his brief that he is

limited in performing his daily activities and requires

assistance, as the ALJ pointed out, on his Function Report dated

January 2012, claimant reported that he could “prepare meals,

clean, do laundry, rake, drive, shop and manage his own finances.

He also reported that he played cards once per week and was able

to walk 1/8 of a mile, pay attention for 4 hours at a time and

possibly lift 25 pounds,” and claimant did not state in the

10 Report that he needed assistance with these tasks. Id. (citing

Admin. Rec. Ex. 6E at 6); see Frustalgia v. Sec’y of Health &

Human Servs.,

(1st Cir. 1987) (providing that

the “credibility determination by the ALJ, who observed the

claimant, evaluated his demeanor, and considered how that

testimony fit in with the rest of the evidence, is entitled to

deference, especially when supported by specific findings.”)

Second, with respect to medical evidence of his back pain,

claimant points to a note that Dr. Jerry Knirk made in September

2012, observing that claimant “has a clinical history that

certainly sounds like it might be consistent with spinal

stenosis,” and argues that this note should be sufficient to

establish claimant’s disabling back pain in the absence of an

MRI, which he should not be penalized for lacking because he

cannot afford medical care. However, as the ALJ recognized,

claimant had an MRI in October 2012 that “showed only mild

degenerative changes of the lumbar spine,” and “no significant

canal narrowing or identifiable root compression to account for

the claimant’s symptoms.” Admin. Rec. at 17 (citing Ex. 10F at

5). During a later visit claimant made to Dr. Knirk in December

2012, Dr. Knirk noted that claimant “never returned to follow

up,” after his diagnostic tests were completed in October.

11 Third, claimant points to consultative orthopedist Dr.

Matthew Masewic’s March 2012 observations as evidence that

claimant’s right arm and knee pain warrant a finding of

disability. Dr. Masewic noted that there “did appear to be a

section of the biceps missing on the right arm likely from a

muscular tear that had not been repaired,” and he noted a “mild

effusion with crepitus in the knee,” however, as the ALJ pointed

out, there is very little medical evidence in claimant’s file

regarding his arm and knee pain to support the inference that it

is ongoing and disabling. Admin. Rec. at 17. Again, claimant

argues that the ALJ’s observation of deficient medical evidence

was improper because claimant lacks funds to obtain treatment.

However, the ALJ pointed to specific occasions on which claimant

sought and received medical treatment during which he

conspicuously did not complain of pain in his right arm. For

example, claimant did not complain of arm pain to Dr. Knirk when

he saw him in 2012 for his back pain. Nor, as the ALJ noted, was

there any evidence of “musculoskeletal impairment or functional

limitations” regarding claimant’s right arm, knee, or back when

claimant was examined in December 2011 at White Mountain

Community Health Center to be treated for dizziness and abdominal

issues. Also, the ALJ explained that she afforded Dr. Masewic’s

initial observation “little weight” because his opinion that

“claimant had nerve root compression and spinal stenosis,” was

12 ruled out by objective testing — the MRI. Admin. Rec. at 18.

Therefore, even if the ALJ erred by drawing a negative inference

from claimant’s lack of medical treatment, that error would be

harmless, because she provided independent reasons for

determining that claimant was not disabled. See Campbell v.

Astrue,

(D. Conn. 2009).

Fourth, claimant contends that the ALJ failed to consider

medical evidence that claimant lacked motivation and would have

“attendance problems due to pain.” Claimant’s Mem. at 10. On

the contrary, the ALJ expressly considered the opinion of

consultative psychologist, Dr. Cheryl Bildner, Ph.D., from which

these assertions originated, in making her RFC determination.

Admin. Rec. at 18. However, the ALJ also stated that she relied

on the medical opinion of Dr. Laura Landerman, Ph.D., who had

reviewed Dr. Bildner’s notes. Admin. Rec. at 18. Dr. Landerman

specifically stated that she gave “minimal weight” to Dr.

Bildner’s “opinion that the claimant is unable to maintain

attendance as well as to sustain attention and concentration”

because she based those opinions on “reported pain,” “somatic

impairments are beyond the scope of [the Agency’s] psychological

assessment,” and, this notwithstanding, Dr. Bildner did not

diagnose claimant with a pain disorder. Admin. Rec. at 76.

Based on Dr. Landerman’s opinion, the ALJ stated that she gave

13 “little weight” to Dr. Bildner’s opinions on these matters.

Nonetheless, the ALJ included a limitation in the RFC that

claimant’s productivity would be reduced by 10% or less “due to

decreased concentration, persistence and pace.” Admin. Rec. at

16. Claimant complains that this percentage should be higher,

but he points to no medical evidence supporting a decrease in his

productivity of 20% or more.

In light of the foregoing, the court cannot conclude that

the ALJ’s credibility determination, her decision to discount

claimant’s subjective complaints of disabling symptoms, or her

RFC determination lack substantial support in the record.

II. Testimony of the Vocational Expert

Next, claimant asserts that the ALJ improperly ignored

testimony of the VE concluding that there would not be jobs

available in significant numbers in the national economy for

claimant in response to two more restrictive hypotheticals posed,

but ultimately rejected, by the ALJ in which claimant’s

productivity would be at least 20% below the norm, or claimant

would have at least two unscheduled absences from work per month

on a continuing basis. Claimant’s memorandum at 12-13. Again,

however, the court is constrained to disagree.

14 As explained above, the hypothetical presented to the VE and

ultimately accepted by the ALJ was supported by substantial

evidence. The ALJ rejected the additional hypothetical

limitations she posed to the VE, and, as no medical professional

actually stated that claimant’s productivity would be reduced by

20% or that he would consistently have two or more unscheduled

absences from work per month, the ALJ was not required to accept

the VE’s responses to hypotheticals that contained those

restrictions. See Rossi v. Shalala,

(1st Cir. 1995).

Consequently, the court cannot conclude that the ALJ erred in

rejecting the opinion of the VE specific to the hypothetical

limitations she rejected as inconsistent with the record.

III. Claimant’s Age and Work History

Claimant next argues that the ALJ improperly ignored the

fact that his age category changed from “younger individual” to

“closely approaching advanced age” on June 1, 2009, when he

turned 50 years old, and that, as such, the ALJ should have found

him “disabled” pursuant to Rule 201.14 of the Medical-Vocational

Guidelines. See

, 416.963;

Subpt. P,

Appx. 2.

The ALJ specifically recognized that “claimant was born on

July 1, 1959, and was 49 years old, which is defined as a younger

15 individual on the alleged onset date. He is now 54 years old and

classified as an individual closely approaching advanced age.”

Admin. Rec. at 18. Therefore, she did not ignore claimant’s

change in age status. Further, because the ALJ correctly

concluded that claimant had the residual functional capacity to

perform light work with certain physical and non-physical

limitations, she properly referred to Medical-Vocational Rules

202.21 and 202.14, which apply to individuals capable of light

work (younger and closely approaching advanced age individuals,

respectively), but she also heard testimony from a vocational

expert who concluded that there were jobs in existence in the

national economy for an individual with claimant’s age (both

younger and more advanced), education, work experience, and

residual functional capacity.

Rule 201.14 applies to individuals whose residual functional

capacity is limited to sedentary, rather than light, work.

Therefore, it does not apply to claimant, so it cannot be a basis

on which to reverse the decision of the ALJ.

Claimant further contends that the ALJ ignored and failed to

credit claimant’s work history of in excess of 35 years of manual

labor, and failed to apply a regulation providing disabled status

to individuals who “have no more than a marginal education (see

16 § 404. 1564) and work experience of 35 years or more during which

you did only arduous unskilled physical labor . . . .” See

(a), 416.962(a) (emphasis added). By its

terms, the regulation does not apply to claimant. First,

claimant has a high school education. Pursuant to the

regulation, “formal schooling at a 6th grade level or less is a

marginal education.” See

. Second, the

vocational expert testified that claimant’s past work as a farm

manager is “skilled work . . . and heavy as performed” by

claimant, rather than unskilled work contemplated by the

regulation. Admin. Rec. at 45.

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. Such is

17 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 Acting Commissioner and claimant,

the court necessarily 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 her decision (June 28, 2013). The

ALJ’s RFC determination and her conclusion that claimant is able

to perform light work with certain restrictions are well-reasoned

and supported by substantial evidence.

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 Acting Commissioner (document no. 15)

18 is denied, and the Acting Commissioner’s motion to affirm her

decision (document no. 17) 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

June 12, 2015

cc: Leslie H. Johnson, Esq. Robert J. Rabuck, Esq.

19