UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Virginia Blamire

v. Civil No. 14-cv-212-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Virginia Blamire moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. 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). However, the court “must uphold a denial of

social security disability 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 Acting

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 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,

2

(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 a decision of the

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.

Blamire has been diagnosed with psoriatic arthritis, which

is “the occurrence of psoriasis and polyarthritis, resembling

rheumatoid [arthritis] . . . and often involving the digits.”

Stedman’s Medical Dictionary 160 (28th ed. 2006). Rheumatoid

arthritis, in turn, is “a generalized disease . . . which

primarily affects connective tissue . . . involving many joints,

especially those in the hands and feet . [and which is] often

3 chronic and progressive, leading to deformities and disability.”

Blamire’s treatment has included several forms of

medication.

With respect to Blamire’s ability to perform work-related

activities, the record includes: (1) an assessment of Blamire’s

physical residual functional capacity1 completed by a Social

Security single decision maker2 in December of 2011; (2) a

“Medical Source Statement of Ability to do Work-Related

Activities (Physical)” completed by Dr. Andree Phillips,

Blamire’s treating rheumatologist, in January of 2012; and (3) a

second medical source statement completed by Dr. Phillips in

October of 2012.

In her second statement, Dr. Phillips opined that Blamire:

(1) could never lift or carry more than 20 pounds, but could

occasionally lift or carry up to 20 pounds and could frequently

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).

2“Single decision makers are authorized under

(a) as a ‘testing modification’ in several states, including New Hampshire, for streamlining the disability determination process.” Martel v. U.S. Soc. Sec. Admin., Comm’r, No. 13-cv-48-PB,

, at *13 n.12 (D.N.H. Nov. 18, 2013) (citation omitted); see also Sratton v. Astrue,

, 138 n.2 (D.N.H. 2012) (describing the single-decision-maker model).

4 lift or carry up to 10 pounds; (2) could sit for one hour

without interruption and for eight hours in an eight-hour work

day; (3) could stand for one hour without interruption and for

four hours in an eight-hour work day; (4) could walk for one

hour without interruption and for two hours in an eight-hour

work day; (5) did not need a cane to ambulate; (6) could

occasionally use either hand for reaching, handling, fingering,

feeling, and pushing/pulling; (7) could occasionally use either

foot to operate foot controls; (8) could never climb stairs,

ramps, ladders or scaffolds but could occasionally balance,

stoop, kneel, crouch, and crawl. With regard to environmental

limitations, Dr. Phillips opined that Blamire (1) could not

tolerate exposure to unprotected heights, humidity, wetness, or

extreme heat or cold; (2) could tolerate occasional exposure to

moving mechanical parts, operating a motor vehicle, and

vibrations; and (3) could tolerate moderate (office) noise.

Finally, Dr. Phillips opined that Blamire was able to: (1)

perform activities like shopping; (2) travel without a companion

for assistance; (3) ambulate without an assistive device; (4)

walk a block at a reasonable pace on rough or uneven surfaces;

(5) use standard public transportation; (6) climb a few steps at

a reasonable pace with the use of a single hand rail; (7)

5 prepare a simple meal and feed herself; (8) care for her

personal hygiene; and (9) sort, handle, or use paper/files.

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 impairment: psoriatic arthritis (20 CFR 404.1520(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 404.1520(d), 404.1525 and 404. 1526).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) allowing her to lift and carry up to twenty pounds occasionally and ten pounds frequently; sit, stand, or walk for one-hour periods of time each but overall sit up to eight hours per day, stand up to four hours per day, and walk up to two hours per day; occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl but never climb ladders, ropes, or scaffold[s]; occasionally reach, handle, finger, feel, push, or pull; and she would need to avoid unprotected heights, exposure to concentrated levels of humidity or wetness and temperature extremes, but she could occasionally drive a car, work with dangerous machinery, and perform work with vibration.

. . . .

6. The claimant is unable to perform any past relevant work (20 CFR 404. 1565).

6 . . . .

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 and 404.1569(a)).

Administrative Transcript (hereinafter “Tr.”) 49, 50, 54. Based

upon his assessment of Blamire’s residual functional capacity,

and his reliance upon testimony from a vocational expert (“VE”),

the ALJ determined that Blamire was able to perform the

occupations of surveillance system monitor, companion, and

hostess.

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). The only question

in this case is whether Blamire was 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

7 which has lasted or can be expected to last for a continuous period of not less than 12 months.

(d)(1)(A). 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. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

(d)(2)(A).

To decide whether a claimant is disabled for the purpose of

determining eligibility for disability insurance benefits, an

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

.

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

8 age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

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)). However,

[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations.

; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in

; Heckler v. Campbell,

(1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in

. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust,

§ 200(e)) that restrict his [or her] ability to perform jobs he [or

9 she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,”

.969a(d) (2001). See also Pratts v. Chater,

(2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).

Seavey,

(parallel citations omitted). 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.

Mandziej,

(citing Avery v. Sec’y of HHS,

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

(1st Cir. 1982)).

B. Blamire’s Arguments

According to Blamire, the ALJ’s decision should be

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

step three by determining that her psoriatic arthritis does not

meet or medically equal the severity of a listed impairment; (2)

formulated a residual functional capacity that was not supported

by substantial evidence; (3) improperly assessed her

credibility; (4) relied upon VE testimony that was based upon a

hypothetical question that incorporated a flawed RFC; and (5)

improperly relied upon the medical-vocational guidelines. The

court is not persuaded by any of Blamire’s arguments.

10 1. Step Three

Blamire first argues that the ALJ erroneously determined

that her psoriatic arthritis did not meet the conditions for

Listing 1.02, major dysfunction of a joint, because, in fact,

“[t]he medical evidence and testimony clearly indicate chronic

joint pain and stiffness resulting in an inability to ambulate

effectively and an inability to perform fine and gross movements

effectively.” Cl.’s Br. (doc. no. 9-1) 5.

To meet the level of severity required for Listing 1.02,

joint dysfunction must result in either an inability to ambulate

effectively or an inability to effectively perform fine and

gross movements with an upper extremity. But, a listing-level

joint dysfunction must also be

[c]haracterized by gross anatomical deformity (e.g., subluxation, contraction, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankyloses of the affected joint(s).

, Subpt. P, App. 1, Listing 1.02 (emphasis

added). Moreover, “[f]or a claimant to show that [her]

impairment matches a listing, it must meet all of the specified

medical criteria [which means that] [a]n impairment that

manifests only some of those criteria, no matter how severely,

11 does not qualify.” Sullivan v. Zebley,

(1990), superseded by statute on other grounds as stated in

Colon v. Apfel,

(S.D.N.Y. 2001)

(emphasis in the original).

In determining that Blamire’s psoriatic arthritis did not

meet Listing 1.02, the ALJ pointed out that she did “not display

gross anatomical deformity.” Tr. 50. In the only office note

that addresses the issue of deformity, Dr. Phillips reported

that “[m]usculoskeletal exam of the hand reveals no significant

deformity in the DIP or PIP joints or MCPs.” Tr. 317.

Moreover, while several of Dr. Phillips’s office notes mention

range of motion, none reports any limitation. See Tr. 251, 256,

293, 303, 313, 315, 317, 320. Because the record includes no

evidence of gross anatomical deformity and considerable evidence

of normal, unlimited joint motion, the ALJ committed no error at

step three by determining that Blamire’s condition does not meet

the level of severity necessary required by Listing 1.02. See

Zebley,

.

2. RFC

Blamire next claims that the ALJ’s assessment of her RFC is

not supported by substantial evidence because “[t]here is no

medical evidence to substantiate the findings that the Claimant

12 can overall sit up to eight hours per day [and] stand up to four

hours per day.” Cl.’s Br. (doc. no. 9-1) 5.

In her medical source statement of October 2012, Blamire’s

treating rheumatologist opined that she could sit for eight

hours in an eight-hour workday and stand for four hours in an

eight-hour workday. To be sure, Dr. Phillips had opined, about

ten months earlier, that Blamire could only sit for six hours in

an eight-hour workday and stand for one hour in an eight-hour

workday. See Tr. 297. But, as the court has noted, “the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.” Irlanda Ortiz,

.

Thus, the ALJ committed no error by basing Blamire’s RFC on Dr.

Phillips’s more recent opinion.

Blamire also claims that the ALJ erred by determining that

her RFC qualified her as capable of performing light work.

Under the applicable regulations:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.

13

(b). Blamire does not identify with any

precision what aspects of light work she is not capable of

performing, and Dr. Phillips’s second medical source statement

is substantial evidence in support of the ALJ’s determination

that Blamire is capable of meeting the exertional requirements

of light work.

3. Credibility

Blamire also makes a cursory attempt to challenge the ALJ’s

assessment of the credibility of her testimony, arguing that:

(1) the ALJ gave “an insufficient explanation discrediting the

Claimant’s testimony with regard to the limitations of her daily

activities, the increased difficulty in bathing and dressing, as

well as the need for guidance and assistance while showering,”

Cl.’s Br. (doc. no 9-1) 6; and (2) the ALJ “determined [that]

her claims of severity were not supported by objective

evidence,” id. at 7, but made that determination by ignoring

“the medical records of increased symptoms, increased tremors,

and increased muscle spasms,” id.

As a preliminary matter, the court is not convinced that

Blamire’s credibility arguments are sufficiently developed to

merit the court’s attention. See Kalantzis v. U.S. Soc. Sec.

Admin., Comm’r, No. 13-cv-12-JL,

, at *3 (D.N.H.

14 Feb. 10, 2014) (citing Montero v. Colvin, No. 12-cv-412-JL,

, at *1 n.1 (D.N.H. Aug. 8, 2013); Dawes v. Astrue,

No. 1:11-cv-272-DBH,

, at *7 (D. Me. Mar. 30,

2012)). But, in any event, neither argument is meritorious.

In declining to fully credit Blamire’s testimony concerning

her ability to perform daily activities, including bathing and

dressing, the ALJ specifically referred to Blamire’s report to

Dr. Phillips that she was spending five days a week at home with

her 11-year-old daughter while her husband was on the road

working as a trucker. See Tr. 303. That explanation is

sufficient. See Irlanda Ortiz,

(“the resolution

of conflicts in the evidence is for the [Acting Commissioner],

not the courts”). With regard to the ALJ’s purported failure to

consider “the medical records of increased symptoms,” Cl.’s Br.

(doc. no. 9-1) 7, the material that Blamire charges the ALJ with

ignoring consists exclusively of subjective complaints that

Blamire made to Dr. Phillips. But, Blamire’s subjective

complaints to Dr. Phillips are not medical evidence. See Ford

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

, at *8 (D.N.H.

July 7, 2005). Thus, the ALJ’s failure to mention those

complaints in his decision does nothing to undermine his

determination that Blamire’s statements about her symptoms were

not adequately supported by medical evidence.

15 4. VE Testimony

Blamire claims that this case should be remanded because

the ALJ relied upon the VE’s answer to a hypothetical that

“excluded limitations described in the Claimant’s testimony with

regard to her ability to stand and walk for any length of time.”3

Cl.’s Br. (doc. no. 9-1) 6. That argument fails because Blamire

offered no testimony about her ability to stand,4 and while she

testified that she sometimes walks “bent over,” Tr. 85, she

never testified that her condition limited the amount of time

she was able to walk or the amount of walking she was able to

do.

3Blamire continues: “When those limitations were inquired to the VE, she testified that the Claimant would be precluded from light work if those were requirements as well as the inability to deal with the issue of standing for any length of time.” Cl.’s Br. (doc. no. 9-1) 6. Blamire does not provide a citation that directs the court to the testimony to which she refers, and the court has been unable to locate any such testimony. Blamire’s counsel did ask the VE whether an inability to sit, stand, or walk for more than an hour at a time would preclude a person from performing the three jobs she had identified as appropriate for Blamire. The VE answered that question in the negative, indicating that all three jobs could be performed with a sit/stand option. See Tr. 96-97.

4The only mention of standing at the hearing was the ALJ’s observation that Blamire had been standing throughout it. See Tr. 81.

16 5. Reliance upon the Medical-Vocational Guidelines

Finally, Blamire claims that the ALJ’s “reliance upon the

Medical-Vocational Guidelines was a further error.” Cl.’s Br.

(doc. no. 9-1) 6. That claim fails because the ALJ did not rely

upon the medical-vocational guidelines. Rather, because the ALJ

found that Blamire had nonexertional limitations, he eschewed

the Medical-Vocational Guidelines and relied upon the testimony

of a VE.

Conclusion

Because the ALJ committed neither a legal nor a factual

error in evaluating Blamire’s claim and determining that she was

not disabled, see Manso-Pizarro,

, 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 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 26, 2015 cc: John A. Wolkowski, Esq. T. David Plourde, Esq.

17