UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Henry T. Nelson, Claimant

v. Case No. 15-cv-37-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,

Henry T. Nelson, moves to reverse or vacate the Acting

Commissioner’s decision denying his application for Disability

Insurance Benefits under Title II of the Social Security Act

(the “Act”),

, and Supplemental Security Income

Benefits under Title XVI of the Act,

(c).

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.

1 Factual Background

I. Procedural History.

In 2012, Nelson filed an application for Disability

Insurance Benefits, alleging that he had been unable to work

since October 31, 2010, due to degenerative disc disease,

anxiety and confusion (depression). Administrative Record

(“Admin. Rec.”) at 137-154, 172-187. That application was

denied (Admin. Rec. at 59-86), and claimant requested a hearing

before an Administrative Law Judge (“ALJ”) (Admin. Rec. at 87-

88).

On August 13, 2012, Nelson, his attorney, and a vocational

expert appeared before an ALJ, who considered claimant’s

application de novo. Admin. Rec. at 29-51. Two weeks later,

the ALJ issued her written decision, concluding that Nelson was

not disabled, as that term is defined in the Act, at any time

prior to the date of her decision. Id. at 16-24.

Nelson then sought review of the ALJ’s decision by the

Appeals Council. Admin. Rec. at 12. By notice dated November

28, 2014, the Appeals Council denied Nelson’s request for

review. Admin. Rec. at 1-6. Accordingly, the ALJ’s denial of

Nelson’s application for benefits became the final decision of

the Acting Commissioner, subject to judicial review. Id. at 1.

2 Subsequently, Nelson filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence. Nelson then filed a “Motion for Order

Reversing Decision of the Commissioner” (document no. 8). In

response, the Acting Commissioner filed a “Motion for Order

Affirming the Decision of the Commissioner” (document no. 20).

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. 11), 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),

3 1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(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 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 she 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, 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,

4 e.g., Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988); Rodriguez v. Secretary of Health &

Human Services,

(1st Cir. 1981).

II. The Parties’ Respective Burdens.

An individual seeking SSI and DIB 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 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. Secretary of Health &

Human Services,

(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

5 experience. See Vazquez v. Secretary of Health & Human

Services,

(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. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(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). See also 42 U.S.C. § 1382c(a)(3)(B).

6 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 Nelson 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

Nelson had not been engaged in substantial gainful employment

since his alleged onset of disability: October 31, 2010. Admin.

Rec. at 18. Next, she concluded that Nelson suffers from the

following severe impairment: “degenerative disc disease of the

lumbar spine.”

She also considered Nelson’s mental

impairments, depression and anxiety, and determined that they

“do not cause more than minimal limitation in the claimant’s

ability to perform basic mental work activities and are

therefore nonsevere.” Id. at 19. The ALJ then determined that

Nelson’s 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.

Nelson does not challenge any of those findings.

7 Next, the ALJ concluded that Nelson retained the residual

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

light work, as defined in 20 CFR 404.1567(b) and 416.967(b),

except that he can frequently balance and perform the remaining

postural activities occasionally.1 Admin. Rec. at 20. She

further noted that claimant can sustain concentration,

persistence, and pace for two-hour blocks of time over an 8-hour

work day and 40-hour workweek, consistent with regular breaks.

Id. In light of those restrictions, the ALJ concluded that

claimant was not capable of returning to his prior job. Id. at

23.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying on

the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,

11 “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 impairments, 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).

, the ALJ concluded that “there are jobs that exist in

significant numbers that the claimant can perform.”

The

ALJ then concluded that claimant was not “disabled,” as that

term is defined in the Act, through the date of her decision.

Discussion

Claimant challenges the ALJ’s decision, asserting that she

erred by failing to credit the views of Nelson’s treating

physician, Dr. Sharma, and instead relying on the DDS non-

examining file reviewer, Dr. Fairley.

I. Dr. Fairley’s Report

Nelson argues that the ALJ’s reliance on Dr. Fairley’s July

2012 report was improper largely because Dr. Fairley had not

reviewed an MRI imaging performed after Fairley’s evaluation in

October 2012. According to Nelson, the October 2012 MRI

demonstrated “compression of the anterior thecal sac with

narrowing of the canal on the right at L4-5[,] and raised the

possibility of nerve compression of the nerves.” Cl.’s Mot. to

Reverse, p. 4. While Dr. Fairley did review Nelson’s x-rays

prior to issuing his evaluation, Nelson argues that this is not

sufficient because an MRI is a “much more sensitive” diagnostic

tool.

Thus, says Nelson, because Dr. Fairley did not

9 review Nelson’s MRI, the ALJ could not properly rely upon Dr.

Fairley’s report.

The Acting Commissioner disagrees, arguing the ALJ’s

reliance was entirely proper, because “absent evidence of a

sustained (and material) worsening in Plaintiff’s condition

after Dr. Fairley reviewed the record (July 2012), the ALJ could

continue to rely on such opinion.” Def.’s Mot. to Affirm, p. 5.

The Acting Commissioner argues that the ALJ’s continued reliance

on Dr. Fairley’s opinion was permissible because Nelson fails to

point to specific evidence demonstrating that his back condition

worsened after July 2012.

The Acting Commissioner has the better argument here. “As a

general matter, an ALJ may place greater 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.”

Brown v. Colvin, No. 14-CV-256-JL,

, at *3

(D.N.H. July 17, 2015) (quotation omitted). Dr. Fairley’s

report suggests that he closely reviewed Nelson’s medical

records through July 2012, and then supported his conclusions

with extensive discussion of those medical records as well as

Nelson’s own Function Report. Accordingly, the ALJ was entitled

10 to rely upon the assessment. Moss v. Astrue, No. 1:10-CV-054-

JL,

, at *16 (D.N.H. Apr. 21, 2011) (“The ALJ's

decision to adopt an assessment by a non-treating physician is

further supported if that assessment references specific medical

findings indicating that the claimant's file was reviewed with

care.”) (additional citations omitted).

While claimant is correct that Dr. Fairley’s July 2012

evaluation of Nelson was performed without the benefit of

Nelson’s October 2012 MRI results, this fact does not preclude

the ALJ from relying on Fairley’s assessment. As the court has

previously stated:

It can indeed be reversible error for an administrative law judge to rely on an RFC opinion of a non-examining consultant when the consultant has not examined the full medical record.” Strout v. Astrue, Civil No. 08– 181–B–W,

, at *8 (D. Me. Jan. 28, 2009) (citing Rose v. Shalala,

(1st Cir. 1994)). However, an ALJ may rely on such an opinion where the medical evidence postdating the reviewer's assessment does not establish any greater limitations, see

at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly inconsistent” with, the reviewer's assessment. See Torres v. Comm'r of Social Security, Civil No. 04–2309,

, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771,

, at *4 n.5 (5th Cir. 2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered

11 medical records dated after the non-examining source's report).

Ferland v. Astrue, No. 11-CV-123-SM,

, at *4

(D.N.H. Oct. 31, 2011).

Here, the ALJ reviewed the entirety of Nelson’s medical

records, including records post-dating July 2012, and determined

that Dr. Fairley’s opinion was “generally consistent with the

claimant’s reported ability to sustain extensive activities of

daily living and with the limited objective findings on record.”

Admin. Rec. at 22. The record supports that conclusion.

As the Acting Commissioner notes, Nelson points to no

evidence in the record that suggests a sustained worsening of

Nelson’s back problem after July 2012. In other words, Nelson

fails to point to medical evidence after July 2012 that

establishes any “greater limitations” than those assessed by Dr.

Fairley. Ferland,

, at *4. And, the evidence in

the record indicates that, after July 2012, Nelson complained of

lower back pain, his reported pain level ranged between no

reported pain and 8/10, and Dr. Sharma continued to note

“tenderness over the paraspinal muscles in the lumbar region,”

but otherwise normal musculoskeletal and neurological findings.

See, e.g., Admin. Rec. at 340, 334, 350-351, 356, 360, 366, 370,

12 393.) That is consistent with Nelson’s complaints and reported

pain levels, as well as Dr. Sharma’s clinical findings, recorded

prior to July 2012. See, e.g., Admin Rec. at 224-25, 230-231,

259-260, 265-266.

Moreover, Nelson’s argument that the MRI “raised the

possibility of nerve compression” (cl.’s Mot. to Reverse, p. 4)

is inconsistent with the interpretation of the MRI by the

radiologist who reviewed the results and stated: “no clear focul

neural compression,” and “I do not see any clear indication that

the root is being compressed.” Admin. Rec. at 332. And, while

the recommendation of Dr. Sharma is not consistent with Dr.

Fairley’s assessment, the ALJ permissibly afforded Dr. Sharma’s

opinion “little weight” (Admin. Rec. at 22) for the reasons

discussed below. Accordingly, the record supports the ALJ’s

determination that Dr. Fairley’s opinion was “generally

consistent” with the record as a whole, and the ALJ did not err

in relying on Dr. Fairley's report in her RFC analysis.

II. Dr. Sharma’s Report

Nelson further argues that the ALJ erred by giving little

weight to the opinion of his treating physician, Dr. Sharma.

According to Nelson, in making this determination, the ALJ

failed to adequately consider the relevant regulatory factors

13 and applied an incorrect legal standard. Nelson also argues the

ALJ should have considered Dr. Sharma’s opinions as to each of

Nelson’s limitations separately, and sought clarification

regarding the basis for Dr. Sharma’s opinions.

Dr. Sharma has been Nelson’s treating physician since

November 2010. The “Medical Source Statement of Ability to Do

Work-Related Activities (Physical)” he prepared in May 2013,

indicates that Nelson cannot lift or carry more than 10 pounds,

can stand or walk for no more than 2 hours (in an eight-hour

work day), can sit for no more than six hours (in an eight-hour

work day), cannot climb, balance, crouch, or crawl; can

occasionally kneel and stoop; can only reach, handle or finger

for less than two and a half hours (in an eight-hour work day);

and that Nelson’s exposure to certain environmental conditions

must be limited. Admin. Rec. at 380-383. Despite the “Medical

Source Statement of Ability to Do Work-Related Activities

(Physical)” form’s explicit instructions, Dr. Sharma failed to

provide any explanation for the limitations he recommended, or

indicate any factors that supported his assessment.

Having reviewed the record, the court concludes that the

ALJ could properly limit the amount of weight given to Dr.

Sharma’s opinion. As set forth herein, the ALJ adequately

14 explained her reasons for discounting Dr. Sharma’s opinion, and

the record lends substantial support to her finding that his

opinion was inconsistent with much of the record evidence.

“The opinion of a treating physician must be given

controlling weight if it is well supported and not inconsistent

with other evidence in the record.” Eley v. Colvin, No. 14-CV-

165-JL,

, at *2 (D.N.H. Apr. 21, 2015) (citing

(c)(1) and 404.1527(c)(2). However, the ALJ

“may discount a treating physician’s opinion or report regarding

an inability to work if it is unsupported by objective medical

evidence or is wholly conclusory.” Marczyk v. Astrue, No. 08-

330A,

, at *3 (D.R.I. Aug. 7, 2009) (citing

Keating v. Sec’y of Health and Human Servs.,

, 275-

76 (1st Cir. 1988)). If the ALJ does not afford controlling

weight to the opinion of a treating source, “the ALJ must ‘give

good reasons’ for the weight afforded that source,” which means

that “the ALJ's order ‘must contain specific reasons for the

weight given to the treating source's medical opinion, supported

by evidence in the case record, and must be sufficiently

specific to make clear to any subsequent reviewers the weight

the adjudicator gave to the treating source's medical opinion

and reasons for that weight.’” Eley,

, at *2

(quoting

(c)(2) and Delafontaine v. Astrue, No.

15 1:10-CV-027-JL,

, at *13 (D.N.H. Jan. 7, 2011))

(additional citations omitted).

Nelson argues that the ALJ erred by failing to take into

account all of the factors laid out in

. These

factors include: the length of the treatment relationship and

frequency of examination; the nature and extent of the treatment

relationship; the supportability of the opinion; the consistency

of the opinion with the record as a whole; and whether the

source is a specialist. See

. However, an ALJ

need not “explicitly take account of all the factors articulated

in

(c) in determining what weight to give a

treating physician's opinion so long as the court is ‘able to

discern the rationale the ALJ used to reach his determination

and that determination is founded on ‘good reasons’ that are

supported by substantial record evidence.’” Eley,

, at *2 (quoting Figueroa v. Astrue, No. 11-CV-100-PB,

, at *6 (D.N.H. June 7, 2012)).

The ALJ gave four reasons in support of her determination

that Dr. Sharma’s opinion was entitled to little weight. First,

she indicated that Dr. Sharma’s opinion failed to “explain the

basis for his limitations and is wholly inconsistent with his

exam notes, which consistently indicate normal objective exam

16 findings and minimal complaints.” Admin. Rec. at 22. That

finding is supported by substantial evidence in the record.

Many of Dr. Sharma’s treatment notes indicate that Nelson “has

no concerns” or “denies any pain.” See, e.g., Admin. Rec. at

224, 230, 237, 240, 262, 291, 356, 370, 384. And, while Dr.

Sharma’s treatment records certainly make clear that Nelson

suffered from on-going back pain (see, e.g., Admin. Rec. at 227,

234, 247), as the ALJ noted, the records also consistently

indicate that Nelson maintained full strength in his

extremities, a normal gait, full range of motion in his

extremities, intact sensation and symmetrical reflexes (Admin.

Rec. at 21). See, e.g., Admin. Rec. at 231, 235, 248, 257, 263,

269, 326, 352, 360, 366, 386, 393.1

Second, the ALJ determined that Dr. Sharma’s opinion was

not consistent with Nelson’s reported abilities to perform yard

and household chores throughout the period at issue. That

determination is also supported by the record. See, e.g.,

Admin. Rec. at 195-202, 307, 312. Nelson’s Function Report

indicates that he could vacuum for about 45 minutes, do laundry

for an hour, wash dishes for 30 minutes, take out the household

1 Indeed, Nelson himself testified that the only limitation Dr. Sharma imposed upon him was to not “pick up anything too heavy because of the strain on [his] back.” Admin. Rec. at 48. 17 trash and take his dog outside for short walks. Admin. Rec.

196-197. And, Nelson indicated to Dr. Reed that, on a typical

day, he performs approximately 90 minutes of yard work. Admin.

Rec. at 307. The ALJ properly concluded that Nelson’s

performance of such activities is simply not consistent with Dr.

Sharma’s opinion that Nelson had a less than sedentary work

capacity, with limited ability to use his hands and arms.

Nelson argues that the ALJ cannot rely on Nelson’s

performance of these activities because they were not performed

on a 40-hour per week basis, and could be performed on Nelson’s

own schedule. To the contrary, it was perfectly valid for the

ALJ to take into account Nelson’s reported daily activities when

determining how to weight Dr. Sharma’s opinion. Indeed,

requires that an ALJ consider the consistency of the

doctor’s opinion with the record as a whole. Nelson’s argument

might have merit had the ALJ relied entirely upon Nelson’s

reported activities in determining his RFC, but that is not what

happened here. Instead, in the context of considering what

weight should be given to Dr. Sharma’s opinion, the ALJ reviewed

Nelson’s daily activities and determined that these activities

were not consistent with the limitations prescribed by Dr.

Sharma. There was no error.

18 Third the ALJ noted that “there is no indication of any

diagnosis or even complaints that would begin to support

limitations in handling, fingering and reaching during the

period.” Admin. Rec. at 22. Nelson takes issue with that

finding because, he argues, the ALJ should have sought

clarification from Dr. Sharma regarding his reasons for the

recommendation. However, under the facts of this case, the ALJ

had no duty to contact Dr. Sharma. Such a “requirement is

triggered ‘[w]hen the evidence we receive from your treating

physician or psychologist or other medical source is inadequate

for us to determine whether you are disabled.’

(e). If, however, there is sufficient record evidence

to resolve the claim, the ALJ is under no obligation to re-

contact a medical source.” Young v. Astrue, No. 10-CV-417-JL,

, at *7 (D.N.H. Sept. 15, 2011). Here, there was

substantial evidence in the record upon which the ALJ could rely

to resolve Nelson’s claim. Thus, the ALJ’s decision not to seek

clarification from Dr. Sharma is not reversible error.

On that same point, Nelson also argues that the ALJ should

have considered Dr. Sharma’s opinions as to Nelson’s limitations

separately. But, as discussed, the ALJ’s determination to

discount Dr. Sharma’s opinions did not rest solely on her

finding that there was no evidentiary support for the hand use

19 limitations he recommended in the record. She also relied upon

the fact that Dr. Sharma provided no explanation for any of his

recommended limitations, the inconsistencies between Dr.

Sharma’s recommended limitations and his treatment notes, and

the inconsistencies between Dr. Sharma’s recommended limitations

and Nelson’s reported activities. For that reason, Nelson’s

argument lacks merit.

Finally, Nelson takes issue with the ALJ’s somewhat limited

discussion of the length and extent of Nelson’s treatment

relationship with Dr. Sharma. However, as the Acting

Commissioner points out, the ALJ did note that Dr. Sharma was

Nelson’s “treating physician,” and indicated that Nelson had

first visited Dr. Sharma in October 2010. Admin. Rec. at 22.

While greater detail would have been preferable, as discussed

above, “the regulations do not require an ALJ to expressly state

how each factor was considered, only that the decision provide

‘good reasons’ for the weight given to a treating source

opinion.” Bourinot v. Colvin,

(D. Mass.

2015) (citation omitted). And, for all the reasons set forth

herein, the ALJ’s analysis of Dr. Sharma’s opinion meets that

requirement.

20 Nelson's remaining allegations of error are without merit

because the record adequately supports the ALJ's conclusions.

Because the ALJ could properly conclude that Dr. Sharma’s

opinion was not supported by much of the evidence in the record,

and was inconsistent with Dr. Sharma’s own treatment notes, the

ALJ was not required to give Dr. Sharma’s opinion controlling

weight.

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 the nature of judicial review of disability benefit

determinations. See, e.g., Tsarelka v. Secretary of Health &

Human Services,

(1st Cir. 1988) (“[W]e must

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

21 arguably could justify a different conclusion, so long as it is

supported by substantial evidence.”); Rodriguez v. Secretary of

Health & Human Services,

(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.

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 Commissioner (document no. 8) is

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

decision (document no. 10) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

22 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge March 30, 2016

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

23