UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John P. Chippendale, Claimant

v. Case No. 14-cv-55-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, John P.

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

decision denying his applications 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 August 2, 2011, claimant filed an application for

Disability Insurance Benefits, alleging that he had been unable

to work since August 1, 2010, due to blindness in his right eye caused by central retinal artery occlusion1 and double vision in

his left eye, osteoarthritis of his knees, post-traumatic stress

disorder (“PTSD”), and tinnitus. That application was denied on

December 22, 2011, and claimant requested a hearing before an

Administrative Law Judge (“ALJ”), at which time claimant also

amended his claim to include intermittent bilateral shoulder

pain.

On December 27, 2012, claimant, appearing pro se, and a

vocational expert appeared before an ALJ, who considered

claimant’s application de novo. The next day, 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 that the ALJ’s decision is not supported by substantial

evidence. Claimant then filed a “Motion for Order Reversing the

Decision of the Commissioner” (document no. 6). In response, the

1 A retinal artery occlusion is a blockage in an artery that carries blood to the retina, the part of the eye that detects light. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002023/.

2 Commissioner filed a “Motion for Order Affirming the Decision of

the Commissioner” (document no. 8). Those motions are pending.

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. 9), 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. 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

3 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 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 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

4 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 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) 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,

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

and 416.920. 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: August 1, 2010.

Admin. Rec. at 14. Next, he concluded that claimant suffers from

several impairments which are “severe” in that they “impose

significant limitations on the claimant’s ability to perform

6 basic work activities.”

They are: “central retinal artery

occlusion and osteoarthritis status post knee replacement

bilaterally.”

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

17. Claimant does not challenge any of those findings.

Next, the ALJ concluded that claimant retained the residual

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

light work as defined in 20 C.F.R. 404.1567(b) except he can

occasionally climb ladders, ropes, scaffolds, ramps, and stairs,

crouch, crawl, bend, kneel, and stoop. He has monocular vision

due to right eye blindness. He should avoid moderate exposure to

noise.”2 Admin. Rec. at 17. In spite of those restrictions, and

the vocational expert’s opinion to the contrary based on the

hypothetical presented by the ALJ involving a worker with the

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).

7 above-listed limitations, the ALJ concluded that claimant was

capable of returning to his prior job.

. Consequently,

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

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

Discussion

Claimant challenges the ALJ’s decision essentially on the

following bases: (1) his decision that claimant could perform

light work was not supported by substantial evidence; (2) he

rejected the vocational expert’s opinion that claimant would be

unable to perform the demands of his past work; and (3) he failed

to properly weigh the medical evidence.

I. Claimant’s Residual Functional Capacity

Claimant first challenges the ALJ’s determination that he

was capable of performing light work, including his past work,

asserting that the ALJ failed to give appropriate weight to the

opinions of Dr. Cheryl Bildner, Ph.D., a state agency consultant

who examined claimant for the purpose of determining whether he

was disabled, and the vocational expert, Howard D. Steinberg.

Claimant’s Memorandum (document no. 6) at 2. Consequently, he

claims the ALJ’s decision that he could perform the rigors of his

past work as an office machine servicer, designated as “light

work” in the Dictionary of Occupational Titles, 633.281-018

(2001), is not supported by substantial evidence.

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

claimant’s assertion that he is disabled. As he points out, Dr.

Bildner opined that claimant was “unable to sustain attention and

concentration for prolonged periods of time,” that he was “unable

to persist at tasks,” and that his “[p]ace of task completion

[was] likely to be delayed.” Admin. Rec. at 298. Dr. Bildner

diagnosed claimant as having “Major Depressive Disorder,

recurrent, moderate severity”; “Posttraumatic Stress Disorder”;

and “hypertension, hypolipoproteinemia, tinnitus, gout, bilateral

total knee replacement, [and] central retinal vein occlusion.”

The vocational expert who appeared at claimant’s December

2012 hearing opined in response to the ALJ’s hypothetical

description of someone with claimant’s limitations that he did

“not believe that the past work could be performed.”

.

The vocational expert’s testimony, alone or combined with the

limitations described by Dr. Bildner, could serve as substantial

evidence of claimant’s inability to perform his past relevant

work. See Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982).

However, at step four of the five-step analysis for

determining whether an individual is disabled under

(a), the claimant bears the burden of proving that his

9 impairments prevent him from performing his past relevant work.

§ 404.1512©); Bowen v. Yuckert,

(1987).

Further, an “ALJ is not required to elicit the testimony of a

vocational expert” to determine the claimant’s capacity to

perform past relevant work. Santos-Martinez v. Sec’y of Health

& Human Servs.,

(1st Cir. 1995); see also

Stanton v. Astrue,

(2d Cir. 2010). Thus,

the ALJ was not required to consult, or to accept, a vocational

expert’s opinion to determine claimant’s RFC to perform his past

relevant work, and his decision to reject the vocational expert’s

opinion as inconsistent with the record and rely instead on the

prior vocational analysis performed as part of the adjudication

of claimant’s application is not in error. See Admin. Rec. at

43-47; see also Roma v. Astrue, No. 07-1057,

, at

*5 (D. Conn. Aug. 24, 2010) (holding that the ALJ is permitted to

rely on a State agency adjudicator’s vocational analysis).

Furthermore, there is substantial evidence in the record to

support the ALJ’s contrary conclusion that claimant is capable of

performing light work. As the ALJ noted, Dr. Bildner, on whose

opinion claimant urges this court to rely to reverse the ALJ’s

decision, also opined:

Claimant was alert and oriented to person, place, time, and situation. Claimant was able to recall 3/3 words immediately and 3/3 words following a five minute delay. He recalled the third word with a prompt.

10 Claimant was able to spell the word “world” correctly forward and backward. Attention and concentration were good. Intelligence and fund of knowledge are estimated to be within the average range. Claimant could follow simple directions. Insight and judgement (sic) appeared intact. Motivation is fair.

Admin. Rec. at 16, 296. She further opined claimant was “able to

complete activities of daily living. He dresses daily, maintains

his hygiene, assists with household chores, prepares meals,

manages affairs and drives short distances.”

.

Dr. Bildner also opined that claimant “is able to interact

appropriately and communicated effectively with others,”

“understand and remember locations and work-like procedures” with

“no gross deficits . . . in cognitive functioning,” “tolerate

stress associated with a work setting,” “make simple

[decisions],” “interact appropriately with supervisors,” and

manage funds on his own behalf.

. Finally, Dr.

Bildner concluded that claimant “exhibits limited motivation to

return to work.” Id. at 298.

In addition to this evidence from Dr. Bildner that supports

the ALJ’s decision that claimant is capable of performing light

work, another state agency consultant, Dr. John MacEachran, whom

the ALJ recognized did not examine claimant but reviewed the

record, opined that claimant is capable of lifting up to fifty

pounds occasionally and up to twenty pounds frequently and

sitting, standing, or walking for six hours in an eight-hour work

11 day with normal breaks, with no postural or manipulative

limitations. Id. at 43-44. Dr. MacEachran acknowledged

claimant’s visual limitations caused by claimant’s compensated

monocular vision, including limited near acuity, far acuity,

depth perception, and field of vision. Id. at 44. Dr.

MacEachran concluded that claimant’s limited vision does not

constitute a “significant factor or limitation in most

workpl[a]ce functions,” noting that claimant “retains [the]

ability to drive,” notwithstanding his visual limitations. Id.

On September 11, 2012, Dr. Mehl, claimant’s primary care

physician from at least February through August 2012,3 opined

that claimant could continuously lift up to one hundred pounds;

could sit, stand, or walk up to eight hours each day without

interruption; and could perform normal activities with his hands

and feet, including postural activities such as climbing stairs,

stooping and kneeling, and crouching. Id. at 282-85. Dr. Mehl

acknowledged that claimant is visually impaired in his right eye

but stated that he is still able to avoid ordinary workplace

hazards, read very small print, read ordinary newspaper or book

print, view a computer screen, and discern differences in shape

3 Although claimant denies that Dr. Mehl was his primary care physician, the record provides substantial documentary evidence to support the ALJ’s conclusion that she was. Admin. Rec. at 247-56, 268-72, 282-87.

12 and color of small objects such as screws, nuts or bolts. Id. at

285.

As the ALJ noted, Dr. Mehl’s opinion is consistent with

claimant’s ability to do heavy work. Although she was a treating

physician, and the ALJ was entitled to give her opinion

controlling weight, see

(c)(2), the ALJ

exercised his judgment and afforded her opinion great, but not

controlling, weight because it was unclear how long she had

treated claimant and because her opinion that claimant could

perform heavy work was not wholly consistent with the record,

especially in light of “claimant’s status post knee replacement.”

. These medical opinions, including that of Dr.

Bildner, constitute substantial evidence supporting the ALJ’s RFC

determination that claimant could perform light work.

Finally, and not insignificantly, claimant’s own function

report supports the ALJ’s conclusion that claimant is capable of

performing light work, including his past relevant work.

. As the ALJ noted, claimant stated that he had some

physical limitations due to the blindness in his right eye and

osteoarthritis of his knees, such as double vision, reduced depth

perception, and headaches, he also reported that he cuts the

grass and does “minor household repairs,” drives a car, pays

bills and uses a checkbook, watches television, and golfs,

13 although he uses a golf cart and is told where his ball is if he

cannot find it.

. Claimant also testified at his

December 2012 hearing that the vision in his left eye is 20/20

and that he has been doing “a little bit of renovation . . . on

the house for the past seven or eight years.”

.

This record evidence, combined with the fact that claimant

did actually perform his previous employment for approximately

six years after losing the vision in his right eye, supports the

ALJ’s RFC determination that claimant retains the capacity to

perform light work, including his past relevant work.

II. Medical Opinion Evidence

In addition to challenging the ALJ’s RFC determination,

claimant also asserts the ALJ failed to weigh properly all

relevant medical evidence. Specifically, he challenges the ALJ's

decision to give “great weight” to the opinions expressed by one

of his treating physicians, Dr. Mehl, see Admin. Rec. at 247-56,

268-72, 282-87, and Dr. William Jamieson, Ph.D., a state agency

consultant who examined the record but not claimant,

at 39-

43, 45-46, and too little weight to the opinions expressed by Dr.

Cheryl Bildner, Ph.D., a state agency consultative psychologist

14 who examined claimant as part of his disability application, id.

at 295-99.4

The ALJ was entitled to afford Dr. Mehl’s opinion great, but

not controlling, weight. As claimant recognizes, the opinion of

a treating physician 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 claimant’s] case record . . . .”

(c)(2). When the ALJ does not give

controlling weight to a treating physician’s opinion, she must

determine what weight, if any, to give it in accordance with the

following factors: (1) the length of the treatment relationship

and the frequency of examination; (2) the nature and extent of

the treatment relationship; (3) the degree to which the opinion

is supported by relevant medical evidence and explanations; (4)

the consistency of the opinion with the record as a whole; (5)

whether the physician is expressing an opinion in her field of

expertise; and (6) other factors claimant or others bring to the

ALJ’s attention, or of which the ALJ is aware, which tend to

support or contradict the opinion. See

at § 404.1527(c)(2)-

(6).

4 Claimant’s contention that the ALJ should have also relied on the vocational expert in his analysis of the medical evidence is rejected, as previously explained in this order.

15 The record shows that Dr. Mehl was claimant’s primary care

physician from at least February through August 2012. See Admin.

Rec. at 247-56, 268-72, 282-87. She regularly signed off on

examination and treatment notes during that time and completed

claimant’s Medical Source Statement as his “primary care”

physician on September 11, 2012. Id. at 287. The ALJ did not

give Dr. Mehl’s opinion that claimant could perform work at all

exertional levels controlling weight because the length of time

claimant received treatment from Dr. Mehl was unclear from the

record. Id. at 20. However, because her opinion was “largely

consistent with and supported by the evidence of record,” the ALJ

gave it “great weight” as he was entitled to under the

regulations. Id.

While it is true that Dr. Mehl is not a specialist in

psychological behavior, as claimant points out, she is a

physician who had at least six month’s experience treating

claimant, and her opinions are generally consistent with those of

Dr. Bildner, as set out above, and Dr. Jamieson, both

psychologists, concerning at least claimant’s ability to sit,

stand, walk, follow instructions, and attend to his financial

affairs. To the extent that she drew conclusions from her

observations of claimant that are inconsistent with other medical

evidence in the record and claimant’s function report — that

16 claimant could lift and carry up to one hundred pounds for

example — the ALJ rejected those conclusions.

The ALJ also properly considered and evaluated the opinion

of Dr. Jamieson. While noting that he did not examine claimant,

the ALJ recognized that he did examine the record and the

opinions of treating and examining doctors. See Admin. Rec. at

16, 20. “As 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.”).

The ALJ specifically stated that Dr. Jamieson “gave weight

to the opinion of Dr. Bildner, but “noted that her opinion

regarding the claimant’s inability to sustain attention or

consistent schedule were discounted, as they were unsupported by

objective findings.” Admin. Rec. at 16.

17 As the ALJ noted, the problem with Dr. Bildner's opinion

that claimant “is unable to sustain attention and concentration

for prolonged periods of time” and that his “[p]ace of task

completion is likely to be delayed” is that it is inconsistent

with the balance of claimant's medical records, including other

portions of her own report, as set out above in this order.

.

Thus, while there is certainly evidence in the record to

support claimant’s assertions of disabling impairments, there is

also substantial countervailing evidence to support 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 -

18 the court must sustain those findings even when there may also be

substantial evidence supporting the contrary position. 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 (December 28, 2012). Both the ALJ’s RFC

determination and his conclusion that claimant is able to perform

his past relevant work are well-reasoned and well-supported by

substantial documentary evidence.

For the foregoing reasons, as well as those set forth in the

Acting Commissioner’s legal memorandum, claimant’s motion to

19 reverse the decision of the Commissioner (document no. 6) is

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

decision (document no. 8) 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

January 15, 2015

cc: Brenda M. Golden Hallisey, Esq. T. David Plourde, Esq.

20