UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela Reynolds

v. Civil No. 14-cv-439-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Pamela Reynolds moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, the decision of the Acting Commissioner, as announced by

the Administrative Law Judge (“ALJ”) is affirmed.

Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “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 HHS,

(1st Cir. 1996) (quoting

Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Commissioner’s

findings of fact be supported by substantial evidence, “[t]he

substantial evidence test applies not only to findings of basic

evidentiary facts, but also to inferences and conclusions drawn

from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more

than [a] mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’” Currier v. Sec’y of HEW,

(1st

Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the [Acting

Commissioner] to determine issues of credibility and to draw

2 inferences from the record evidence. Indeed, the resolution of

conflicts in the evidence is for the [Acting Commissioner], not

the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir 1991) (citations omitted). Moreover, the court “must

uphold the [Acting Commissioner’s] conclusion, even if the

record arguably could justify a different conclusion, so long as

it is supported by substantial evidence.” Tsarelka v. Sec’y of

HHS,

(1st Cir. 1988). Finally, when

determining whether the decision of the Acting Commissioner is

supported by substantial evidence, the court must “review[ ] the

evidence in the record as a whole.” Irlanda Ortiz,

(quoting Rodriguez v. Sec’y of HHS,

(1st

Cir. 1981)).

Background

The parties have submitted a Joint Statement of Material

Facts (document no. 12). That statement is part of the court’s

record and will be summarized here, rather than repeated in

full.

Reynolds has not worked since October of 2012. Before

that, she had a number of different jobs. Up until 2004, she

was an electronics assembly worker. See Administrative

Transcript (hereinafter “Tr.”) 193.

3 With respect to her physical condition, Reynolds has been

diagnosed with sleep apnea, carpal tunnel syndrome, and

hypothyroidism. Her treatment has included a CPAP mask for

sleep apnea and splints for her carpal tunnel syndrome. With

respect to her mental condition, she has been diagnosed with

depression and mood disorder. Treatment for her mental

conditions has included a variety of medications, individual

counseling, group counseling, and a partial hospital program.

The record includes an assessment of Reynolds’s physical

residual functional capacity,1 made by a non-examining state-

agency physician, Dr. Hugh Fairley. See Tr. 48-50. Dr. Fairley

determined that Reynolds had the capacity to lift and/or carry

20 pounds occasionally and could lift and/or carry 10 pounds

frequently. He also found that she was capable of standing

and/or walking and sitting for about six hours in an eight-hour

workday. With respect to postural activities, Dr. Fairley

opined that Reynolds was able to occasionally climb

ramps/stairs, balance, stoop, kneel, crouch, and crawl.

Finally, he determined that she had no manipulative, visual, or

communicative limitations, and had an unlimited ability to deal

1 “Residual functional capacity,” or “RFC,” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1) & 416.945(a)(1).

4 with all environmental situations other than hazards such as

machinery and heights, to which she could tolerate no exposure.

The record also includes documentation of a Psychiatric

Review Technique completed by Dr. Laura Landerman. Dr.

Landerman determined that Reynolds had: (1) mild restrictions of

her activities of daily living; (2) mild difficulties in

maintaining social functioning; (3) mild difficulties in

maintaining concentration, persistence or pace; and (4) no

episodes of decompensation of extended duration. In performing

her assessment, Dr. Landerman gave primary weight to a report by

Dr. Joan Scanlon, which was based upon an examination of

Reynolds.

Dr. Scanlon, in turn, diagnosed Reynolds with dysthymic

disorder,2 panic disorder without agoraphobia, post-traumatic

stress disorder, and pain disorder associated with her general

medical condition. See Tr. 373. As to Reynolds’s level of

functioning, Dr. Scanlon had this to say:

A. Activities of Daily Living: . . . [C]laimant possesses essential skills of daily living, exemplified in her prior work as a housekeeper. She is thereby able to complete household tasks, obtain needed funds, assist with meal preparation, and wash dishes. She presents as somewhat limited in this area due to her mood and level of motivation.

2 “Dysthymia” is a “chronic mood disorder manifested as depression for most of the day, more days than not . . . .” Stedman’s Medical Dictionary 602 (28th ed. 2006).

5 B. Social Functioning: . . . [C]laimant has had a long history of difficulty establishing relationships dating to her childhood years. However, she related appropriately to coworkers and supervisors in most work positions, and thus is not limited in this domain.

C. Understanding and Remembering Instructions: . . . [C]laimant is able to understand and remember locations and work-like procedures, understand and recall very short and simple instructions, if not more detailed in nature. She does not present as limited in this sphere.

D. Concentration and Task Completion: . . . [C]laimant is able to maintain simple information processing if not more complex in nature, and maintain persistence and pace to complete tasks. She does not present as limited in this domain.

E. Reaction to Stress, Adaptation to Work or Work-Like Situations: . . . [C]laimant is sufficiently able to tolerate stresses in the work setting, render simple decisions, and maintain a schedule. Her limitations reside in her level of motivation, mood, and physical constraints.

Tr. 373.

After conducting a hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

3. The claimant has the following severe impairments: sleep apnea, hypothyroidism, mild hip joint narrowing, obesity, depression and anxiety (20 CFR 404.1520(c) and 416.920(c)).

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

6 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she cannot climb ropes/ladders/scaffolds and she can only occasionally climb remaps/stairs. She is also limited from more than occasional balancing, stooping, kneeling, crouching, and crawling. She needs to avoid all exposure to hazards. Is limited from more than minimal interaction with the general public, but she is able to maintain interactions with co-workers and supervisors.

. . . .

6. The claimant retains the residual functional capacity to return to her past relevant work as an electronics assembly worker (20 CFR 404.1565 and 416.965).

. . . .

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 12, 14, 16, 18, 19.

Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible

7 for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether Reynolds is under a disability.

For the purpose of determining eligibility for disability

insurance benefits,

[t]he term “disability” means . . . 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); see also 42 U.S.C. § 1382c(a)(3)(A)

(setting out a similar definition of disability for determining

eligibility for SSI benefits). Moreover,

[a]n individual shall be determined to be under a disability 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) (pertaining to DIB benefits); see also

42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for

determining eligibility for SSI benefits).

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

8 is required to employ a five-step process. See

(DIB) and 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

) (D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

9 Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Reynolds’s Arguments

According to Reynolds, the ALJ’s decision should be

reversed, and the case remanded, because the ALJ: (1) erred at

step two by determining that her carpal tunnel syndrome was not

a severe impairment; (2) formulated a residual functional

capacity that did not account for the limiting effects of her

mental impairments; (3) erred at step four by determining that

she was capable of working as an electronics assembler; and (4)

erred at step five by determining that there were other jobs in

the national economy that she could perform. The court is not

persuaded by any of Reynolds’s arguments.

1. Step Two

Reynolds first claims that the ALJ erred at step two of the

sequential evaluation process by failing to find that her carpal

tunnel syndrome was a severe impairment. While Reynolds makes

various arguments concerning the manner in which the ALJ made

her step-two determination,

the court need not inquire into whether [Reynolds’s carpal tunnel syndrome] is a severe impairment because “[t]his court has consistently held . . . that an error in describing a given impairment as non-severe

10 is harmless so long as the ALJ found at least one severe impairment and progressed to the next step of the sequential evaluation process.”

Anderson v. Colvin, No. 14-cv-15-LM,

, at *5

(D.N.H. Nov. 4, 2014) (quoting Chabot v. U.S. Soc. Sec. Admin.,

No. 13-cv-126-PB,

, at *9 (D.N.H. May 20, 2014)).

Here, the ALJ found five severe impairments and progressed to

the next step of the sequential evaluation process. Therefore,

her determination that Reynolds’s carpal tunnel syndrome was not

a severe impairment does not warrant a remand.

In addition to claiming that the ALJ erred at step two by

not finding her carpal tunnel syndrome to be a severe

impairment, Reynolds also claims that the ALJ erred by

formulating an RFC that did not include manipulative limitations

resulting from carpal tunnel syndrome. The court cannot agree.

In 2000, after a nerve conduction study, Reynolds received

the following relevant diagnosis: “Mild right median neuropathy

in the carpal tunnel consistent with right carpal tunnel

syndrome.” Tr. 606. In an office note from 2010, resulting

from a follow-up visit for complaints related to Reynolds’s CPAP

mask, nurse Ashley Martin wrote:

Ms. Reynolds also notes that, for the past few nights, she has had disturbed sleep because she is waking up around 3 in the morning with numbness and tingling in her wrists and arms. She says that she does have a history of carpal tunnel syndrome, and is currently not using splints.

11 Tr. 400. The notation quoted above appears under the heading

“Subjective.” Neither the diagnosis nor the treatment plan in

Nurse Martin’s office note says anything about carpal tunnel

syndrome. Dr. Fairley did not identify any manipulative

limitations in his physical RFC assessment, presumably because

the office note documenting Reynolds’s 2000 diagnosis of carpal

tunnel syndrome was not placed in the record until after Dr.

Fairley made his assessment. At Reynolds’s hearing, the

following relevant exchange took place:

Q We were talking about the electronics work. Would you have any problems using your hands now in that type of work?

A I don’t know because it’s been so long. I don’t know. I mean, I do have a lot of hand pain. My fingers keep breaking and it goes into my elbows, the pain, so.

Tr. 31. With respect to her departure from the electronics

assembly field, Reynolds testified: “The reason I got out of

. . . electronics [in 2004] was because it was fading, so I

decided to try driving the school bus.” Tr. 30. In other

words, Reynolds worked as an electronics assembly worker four

years after her carpal tunnel diagnosis, and did not leave that

occupation because of her carpal tunnel syndrome.

At steps one through four of the sequential evaluation

process, which includes the determination of a claimant’s RFC,

12 the claimant bears the burden of proving her disability. See

Bowen,

; Seavey,

. Here, Reynolds

has produced evidence of a diagnosis of carpal tunnel syndrome,

but no medical opinion evidence of any manipulative limitations

resulting from that diagnosis. Even she is unable to say

whether that condition would prevent her from doing her former

work as an electronics assembler, and she testified that carpal

tunnel syndrome is not what prompted her to leave that

occupation. In short, there is no evidence in the record

linking Reynolds’s carpal tunnel syndrome to any limitation in

her ability to perform work-related activities. Thus, the ALJ

did not err by formulating an RFC that did not include a

manipulative limitation.

2. Residual Functional Capacity

Reynolds next argues that the ALJ formulated an RFC that

did not adequately account for her mental impairments.

Specifically, she criticizes the ALJ for: (1) ignoring the

opinions of Dr. Kathy Brann and Dr. Ivan Boyadzhiev that her

mental impairments rendered her unable to work; and (2) failing

to adequately address several of the limitations identified by

Dr. Scanlon. She characterizes both those errors as

impermissible substitutions of the ALJ’s lay opinions for

opinions of medical experts. Reynolds is mistaken.

13 Dr. Brann. In a progress note dated August 18, 2011, under

the general heading “Subjective” and the sub-heading “Mental

Health Problem,” Dr. Brann wrote: “The degree of incapacity that

she is experiencing as a consequence of her illness is mild.

Sequelae3 of the illness include homelessness, an inability to

work and harmed interpersonal relations.” Tr. 229. Reynolds

claims that the ALJ committed reversible error by ignoring Dr.

Brann’s opinion that she was unable to work due to her mental

impairments. However, the statement on which Reynolds relies

appears under the heading “Subjective,” which means that it is

Dr. Brann’s report of Reynolds’s report to him, not Dr. Brann’s

medical opinion. As Judge Barbadoro has explained:

The fact that [the claimant] told [her doctor] that she was experiencing pain and the fact that he recorded her complaints in his notes does not convert her subjective complaints of pain into medical opinion, thus entitling it to some measure of deference. See

(a)(2), 404.1527(d), 416.927(a)(2), 416.927(d). Likewise, [the claimant’s] subjective complaints are not entitled to greater weight simply because they appear in her physician’s notes. See Craig v. Chater,

, 590 n.2 (4th Cir. 1996) (noting that “[t]here is nothing objective about a doctor saying, without more, ‘I observed my patient telling me that she was in pain.”’).

3 “Sequela” is defined as “an aftereffect of disease or injury.” Webster’s Third New International Dictionary 2071 (1993).

14 Ford v. Barnhart, No. 04-CV-194-PB,

, at *8

(D.N.H. July 7, 2005). Based upon Ford, the ALJ’s handling of

the subjective complaint recorded in Dr. Brann’s progress note

does not warrant a remand.

Dr. Boyadzhiev. In a progress note dated September 29,

2011, under the general heading “Subjective” and the sub-heading

“Mental Health Problem,” Dr. Boyadzhiev wrote: “The degree of

incapacity that she is experiencing as a consequence of her

illness is moderate. Sequelae of the illness include harmed

interpersonal relations and an inability to work.” Tr. 222.

Reynolds claims that the ALJ committed reversible error by

ignoring Dr. Boyadzhiev’s opinion that she was unable to work

due to her mental impairments. That claim fails for the same

reasons as Reynolds’s claim regarding the subjective complaint

recorded in Dr. Brann’s progress note.

Dr. Scanlon. Based upon her psychological examination of

Reynolds, Dr. Scanlon gave opinions on Reynolds’s abilities in

five different areas of functioning, including the following:

[C]laimant is able to understand and remember locations and work-like procedures, understand and recall very short and simple instructions, if not more detailed in nature. She does not present as limited in this sphere.

[C]laimant is able to maintain simple information processing if not more complex in nature, and maintain persistence and pace to complete tasks. She does not present as limited in this domain.

15 Tr. 373 (emphasis added). Reynolds claims that the ALJ

committed reversible error by crafting an RFC that did not

include limitations based upon the emphasized portions of Dr.

Scanlon’s opinion. But, each of the “limitations” that Reynolds

criticizes the ALJ for excluding from her RFC is followed by Dr.

Scanlon’s opinion that Reynolds did not present as limited in

the relevant area of functioning. Accordingly, the ALJ’s

decision not to include additional limitations related to

instruction handling and information processing is supported by

substantial evidence.

Reynolds also makes an argument concerning Dr. Scanlon’s

opinion of her ability to perform the activities of daily

living. With regard to that area of functioning, Dr. Scanlon

found:

[C]laimant possesses essential skills of daily living, exemplified in her prior work as a housekeeper. She is thereby able to complete household tasks, obtain needed funds, assist with meal preparation, and wash dishes. She presents as somewhat limited in this area due to her mood and level of motivation.

Tr. 373. The ALJ, in turn made the following finding concerning

that area of functioning:

In activities of daily living, the claimant has [a] mild restriction. The claimant has reported that she manages all personal care without assistance. She is also able to cook, clean, do laundry, drive, shop and handle her personal finances.

16 Tr. 15 (emphasis in the original). This is Reynolds’s argument

against the ALJ’s finding:

[W]hile Dr. Scanlon found limitations in the ability to perform activities of daily living, the ALJ did not accept those limitations, instead finding only mild limitations in that area.

Mot. to Reverse (doc. no. 9) 8. Notwithstanding Reynolds’s

argument to the contrary, the ALJ’s finding tracks Dr. Scanlon’s

finding rather closely. Consequently, the court can discern no

basis for Reynold’s claim and no error in the ALJ’s assessment

of Reynolds’s capacity to perform the activities of daily

living.

In sum, the ALJ’s handling of Dr. Scanlon’s opinion does

not warrant a remand.

3. Steps Four and Five

Reynolds claims that the ALJ made several different errors

at steps four and five of the sequential evaluation process.

She claims that the ALJ committed reversible error at step four

by: (1) failing to conduct her analysis in conformance with

Social Security Rulings 82-61 and 82-62; and (2) relying upon a

flawed RFC. Because the court has already determined that the

ALJ committed no error in determining Reynolds’s RFC, all that

remains is Reynolds’s claim that the ALJ’s step-four finding was

procedurally deficient.

17 “At step four the initial burden is on the claimant to show

that she can no longer perform her former work because of her

impairments.” Manso-Pizarro, 76 F.3d at 17 (citing Santiago v.

Sec’y of HHS,

(1st Cir. 1991)). Specifically, the

claimant must: (1) “produce relevant evidence of the physical

and mental demands of her prior work,” Santiago,

;

and (2) “describe those impairments [that] preclude[ ] the

performance of [that] particular job,”

If the claimant is

able to do so, then “the ALJ must compare the physical and

mental demands of that past work with current functional

capacity.”

(citing

(b)).

Reynolds has not met her initial burden. She argues that

she “expressly testified that she can no longer perform the

electronics assembly occupation due to hand, finger, and elbow

pain.” Mot. to Reverse (doc. no. 9) 12. But her actual

testimony was that she did not know whether she would be able to

use her hands to do that kind of work. See Tr. 31. She did

testify to having some pain in her hands, see

but she said

nothing about the effects of that pain on her ability to use her

hands, and she said nothing about the physical demands of

electronics assembly. Thus, she has shown that she once

received a diagnosis of carpal tunnel syndrome, and that she

suffers some amount of hand pain, but she has not shown that her

18 medical condition or its symptoms would prevent her from

performing her former work as an electronics assembler.

Similarly, she testified that he has difficulty interacting with

people, but that testimony, without more, is insufficient to

meet her burden of showing that she can no longer perform her

former work.

Because Reynolds has not met her initial burden at step

four, the ALJ was under no obligation to perform the analysis

Reynolds criticizes her for failing to perform. Accordingly,

the ALJ did not commit a step-four error that warrants a remand.

Finally, as the ALJ committed no error in determining that

Reynolds was capable of performing her former work in

electronics assembly, the court has no need to address

Reynolds’s claim that the ALJ erred in making her alternative

step-five determination that there were other jobs in the

national economy that Reynolds could perform.

Conclusion

Because the ALJ committed neither a legal nor a factual

error in evaluating Reynolds’s claim and determining that she

was not disabled, see Manso-Pizarro, 76 F.3d at 16, her motion

for an order reversing the Acting Commissioner’s decision,

document no. 9, is denied, and the Acting Commissioner’s motion

for an order affirming her decision, document no. 11, is

19 granted. The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 22, 2015

cc: Penelope E. Gronbeck, Esq. Karen B. Fitzmaurice, Esq. T. David Plourde, Esq.

20