UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Suzanne Gardner

v. Civil No. 13-cv-483-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Suzanne Gardner appeals the Social Security Administration’s

(“SSA”) denial of her application for disability benefits. An

Administrative Law Judge (“ALJ”) found that Gardner suffered from

degenerative lumbar disc disease, degeneration of the knees,

obesity, fibromyalgia, and depression with a history of post-

traumatic stress disorder. The ALJ nevertheless found that

Gardner was not disabled within the meaning of the Social

Security Act because she has sufficient residual functional

capacity (“RFC”) to work at jobs that exist in significant

numbers in the national economy. See

(d)(2)(A).

The SSA Appeals Council subsequently denied Gardner's request for

review of the ALJ’s decision, rendering the ALJ’s decision final.

Gardner timely appealed to this court, pursuant to

(g). In due course, Gardner moved to reverse the SSA’s

decision and SSA’s Acting Commissioner moved to affirm the denial

of benefits.

Gardner asserts two arguments. First, she claims that the

ALJ's RFC finding did not properly consider her limitations. Second, Gardner argues that the ALJ committed several related

legal errors when he allegedly misstated objective medical

evidence, inaccurately evaluated her credibility, and did not

properly weigh her subjective complaints of pain.

After consideration of the parties’ arguments and the

administrative record, the court finds the record evidence

sufficient to support the ALJ's decision. Therefore, Gardner's

motion is denied and the Acting Commissioner’s motion is granted.

I. Standard of Review

The court’s review of SSA’s final decision “is limited 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). The ALJ’s

decision will be upheld if it 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). This is less evidence

than a preponderance but “more than a mere scintilla.” Id.;

Consolo v. Fed. Mar. Comm’n,

(1966). The

possibility of drawing two inconsistent conclusions from the

evidence does not preclude a finding of substantial evidence.

Consolo,

. Accordingly, the ALJ’s resolution of

evidentiary conflicts must be upheld if supported by substantial

evidence, even if contrary results are supportable. Rodriguez

2 Pagan v. Sec’y of Health & Human Servs.,

(1st Cir.

1987). The court next turns to the ALJ’s decision.

II. Background1

In analyzing Gardner's benefit application, the ALJ invoked

the required five-step process. See

. First,

he concluded that Gardner had not engaged in substantial work

activity after the alleged onset of her disability in May 2005.

Next, the ALJ determined that Gardner suffered from several

severe impairments: degenerative disc disease of the lumbar

spine, fibromyalgia, knee degeneration, and depression with a

history of post-traumatic stress disorder See

(c). At the third step, the ALJ concluded that

Gardner's impairments––either individually or collectively--did

not meet or “medically equal” one of the listed impairments in

the Social Security regulations. See

(d),

416.925, & 416.926. The ALJ next found that Gardner had the RFC

to perform light work with the ability to: frequently climb

ramps, stairs, and ladders; frequently crawl; balance, stoop,

kneel, and crouch without limits; interact with supervisors and

co-workers; avoid the public except for on a very superficial and

sporadic basis, limited to one-on-one interaction with the public

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d).

3 on a superficial level once or twice a day without any real

substance; make simple work-related decisions in a routine work

environment; and to engage in moderately complex four-to-five

step instructions with an ability to understand, remember, and

carry out those tasks. Given that the ALJ found at step four

that Gardner could not perform any past relevant work,2 the ALJ

proceeded to step five, at which the SSA bears the burden of

showing that a claimant can perform other work that exists in the

national economy. Freeman v. Barnhart,

(1st

Cir. 2001). Here, the ALJ, relying on Gardner's testimony and

medical records and a vocational expert's testimony, concluded

that Gardner could perform such jobs as cleaner, collator

operator, and price marker, all of which exist in the regional

and national economy. Accordingly, the ALJ found Gardner not

disabled, within the meaning of the Social Security Act.

III. Analysis

A. Credibility

Undergirding much of this appeal is Gardner's claim that the

ALJ improperly assessed her credibility and erroneously

undervalued her subjective complaints of pain and impairment.

These arguments are without merit.

2 Gardner had previously worked as a classroom aide, bartender, laborer and cashier.

4 First, the court notes that while Gardner claims that

"objective medical findings support [her] complaints of pain" in

her back, ankles, knees and "overall body aches," her argument

here merely recites her complaints, but contains few, if any,

reference to objective findings the ALJ "misstated." Indeed, the

very next sentence of Gardner's brief notes only that "at every

office visit, [Gardner] complained of chronic pain between 2005

and 2008." The brief then goes on to detail those subjective

complaints, but not the objective evidence that allegedly

supports them.

Gardner also argues that, "given the strong medical evidence

of [Gardner's] severe spinal pain, bilateral knee and ankle pain,

and constant fibromyalgia pain . . . the ALJ should have given

far greater credibility to the Plaintiff." But it is well-

settled that an ALJ's credibility determination is entitled to

deference, especially when supported by specific evidence.

Simmons v. Astrue,

(D.N.H. 2010) (citing

Frustaglia v. Sec'y of Health and Human Servs.,

(1st Cir. 1987) (“[t]he credibility determination by the ALJ, who

observed the claimant, evaluated [her] demeanor, and considered

how that testimony fit in with the rest of the evidence, is

entitled to deference, especially when supported by specific

findings”)).

5 Here, the ALJ found that while Gardner's impairments could

be expected to cause the symptoms of which she complained, she

was not credible with respect to the intensity, limiting effects

and persistence of those symptoms due to inconsistency with the

objective medical evidence of record. For example, with respect

to Gardner's claim of disabling back pain, the ALJ noted that the

medical records indicated a diagnosis of only mild degenerative

disc disease. Also, although Gardner frequently referenced

fibromyalgia pain, the record was bereft of a formal diagnosis.

Finally, Gardner's complaint of debilitating knee pain was offset

by medical scans showing only mild degenerative left knee joint

disease. While "complaints of pain need not be precisely

corroborated by objective findings, [] they must be consistent

with medical findings.” Dupuis v. Sec'y of Health and Human

Servs.,

(1st Cir. 1989)." Thus, the ALJ's

conclusion that Gardner's complaints were inconsistent with the

medical findings is well-supported.

The ALJ further supported his conclusions with reference to

Gardner's reports of her activities of daily living, which, to

some extent, conflicted with her claims of serious physical and

non-physical limitations. This evaluation is entirely

appropriate. Avery v. Sec'y of Health and Human Servs.,

(1st Cir. 1986). As the ALJ noted, Gardner reported that

she made and designed jewelry which she attempted to sell

6 locally, exercised both by walking and using a video game system,

and cared for her own personal and household needs. This

inconsistency provides sufficient support for the ALJ's

determination that Gardner's subjective complaints were not

entirely credible.

B. Residual Functional Capacity

Gardner next argues that the ALJ failed to take all of her

limitations into account when assessing her RFC. She claims that

pains in her back, knees and ankles, her lower extremity

limitations and overall body aches and fatigue leave her unable

to perform "light" work, as found by the ALJ, with the conditions

previously noted. See 20 C.F.R. 404.967(b). Boiled to its

essence, however, Gardner is doing little more than disagreeing

with the evidentiary weight given to her subjective pain

complaints, all of which the ALJ considered. By contrast, the

ALJ's RFC finding is consistent with that of Dr. Thomas Phillips,

a state examiner who opined that Gardner could perform light work

--the only record opinion regarding plaintiff's functional

abilities. The responsibility of weighing such evidence rests

with the ALJ. Seavey v. Barnhart,

(1st Cir.

2001). Moreover, Dr. Phillips's conclusion was bolstered by

treating nurse practitioner Todd Smith, who, in 2009, noted that

he "saw nothing that would justify" disability benefits at that

point in time. While Smith was not an "acceptable medical

7 source,"

, and thus his opinion was properly

given little weight, the ALJ correctly observed that Smith's

opinion supported his RFC conclusion.

(d)(1)

(noting that it is permissible to use evidence from other

"medical sources," including nurse practitioners); Alcantara v.

Astrue,

(1st Cir. 2007) ("The ALJ was

required to weigh all of the evidence[,]" including those not

deemed "acceptable medical sources.").

Gardner also takes issue with the ALJ's RFC finding insofar

as it allegedly failed to consider all of her anxiety-related

limitations. While it is true that Gardner complained of

fatigue, depression and anxiety, the record does not support her

argument that the ALJ wrongly concluded that she could "engage in

moderately complex four to five step instructions with an ability

to understand, remember and carry out those tasks." The ALJ

considered evidence from treating social worker Kim Devine, who

noted that Gardner would have some difficulty dealing with the

public, a finding that the ALJ incorporated into his RFC

determination, which limited such interactions to a "superficial

and sporadic basis." With respect to carrying out instructions,

a non-examining state agency medical consultant, Dr. Leizer,

reported that his review of Gardner's treatment records showed

that her activities of daily living appeared intact and that she

would be able to perform the mental requirements of all levels of

8 work. See Berrios Lopez v. Sec'y of Health and Human Servs.,

(1st Cir. 1991) (holding that non-examining

consultants' reports are entitled to evidentiary weight); see

also Quintana v. Comm'r of Soc. Sec,

(1st

Cir. 2004) (holding that “greater reliance” on consultants’

reports is warranted where consultant considered reports of

examining and treating doctors and supported conclusions with

reference to medical findings).

Against this factual backdrop, the court finds that the

ALJ's RFC determination was supported by substantial medical

evidence.

IV. Conclusion

While the record demonstrates that Ms. Gardner suffers from

a variety of ailments, the ALJ's decision is nevertheless

supported by substantial evidence. Claimant's motion to reverse3

is DENIED. Defendant's motion to affirm4 is GRANTED. The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

3 Document no. 14. 4 Document no. 15.

9 Dated: June 17, 2015

cc: Christopher J. Seufert, Esq. Daniel McKenna, Esq. Kelie C. Schneider, Esq. Robert J. Rabuck, AUSA

10