UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard J. Gobis, Jr., Claimant

v. Civil No. 15-cv-268-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,

Richard Gobis, Jr., moves to reverse or vacate the Acting

Commissioner’s decision denying his applications for Disability

Insurance Benefits under Title II of the Social Security Act,

and Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, 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.

In the spring of 2012, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that he was disabled and had been

unable to work since March 11, 2012. Claimant was 43 years old

at the time. Those applications were denied and claimant

requested a hearing before an Administrative Law Judge (AALJ@).

In October of 2013, claimant, his wife, his attorney, and

an impartial vocational expert appeared before an ALJ, who

considered claimant’s applications de novo. The following

month, 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. Claimant then

sought review by the Appeals Council, which denied his request.

Accordingly, the ALJ’s denial of claimant’s applications for

benefits became the final decision of the 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 Decision

of the Commissioner” (document no. 11). In response, the Acting

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

the Commissioner” (document no. 14). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 15), 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 42 U.S.C. ' 405(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 42 U.S.C. '' 405(g),

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). Importantly, it

3 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).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or 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.” 42

U.S.C. ' 423(d)(1)(A). See also 42 U.S.C. ' 1382c(a)(3). The

Act places the initial burden on the claimant, who must

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

4 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. 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).

5 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: March 11, 2012. Admin.

Rec. at 78. Next, he concluded that claimant suffers from the

following severe impairments: “mononeuritis multiplex,

degenerative disc disease, depression, and anxiety.”

But,

the ALJ determined that claimant’s impairments, whether viewed

alone or in combination, did not meet or medically equal any of

the impairments listed in Part 404, Subpart P, Appendix 1.

Admin. Rec. at 79.

Next, the ALJ concluded that claimant retained the residual

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

6 “light” work. 1 He noted, however, that claimant can stand and

walk for a maximum of only five hours per day, and he can sit

for a maximum of six hours per day. Admin. Rec. at 80. The ALJ

went on to note that:

The claimant can understand, remember, and carry out moderately complex tasks involving 4 to 5 step instructions. He can interact with coworkers, supervisors, and the public in a superficial and routine manner. He can interact with the public only occasionally. The claimant can make simple decisions and sustain concentration for one hour periods at a time with short breaks of two or three minutes to refocus. He can work in an environment with repetitive tasks. The claimant cannot perform work with more than occasional[] pushing and pulling and use of foot controls. He can perform frequent, but not constant fingering and fine manipulation.

Admin. Rec. at 80. In light of those restrictions, the ALJ

concluded that claimant was not capable of performing any past

relevant work, all of which was performed at either the “medium”

1 “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 (ASSR@), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

7 or “heavy” exertional level. Id. at 84. See also Id. at 144-45

(vocational expert’s testimony about claimant’s work history).

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform. Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding

claimant’s exertional and non-exertional limitations, “there are

jobs that exist in significant numbers in the national economy

that the claimant can perform” and that, “considering the

claimant’s age, education, work experience, and residual

functional capacity, the claimant is capable of making a

successful adjustment to other work that exists in significant

numbers in the national economy.” Id. at 85. Consequently, the

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

defined in the Act, through the date of his decision. Id. at

86.

Discussion

Claimant challenges the ALJ’s decision on three grounds,

asserting that he erred by: (1) failing to afford controlling

weight to the opinions of one of claimant’s treating medical

sources; (2) improperly discounting claimant’s credibility; and

8 (3) erroneously determining claimant’s residual functional

capacity.

I. Medical Source Opinions.

In March of 2012, claimant began seeing Jennifer Jones, DO,

approximately once every one to four months. Admin. Rec. at

747. In July of that year, claimant was examined by Uri Ahn,

M.D., at the New Hampshire NeuroSpine Institute. Dr. Ahn

performed a physical examination and reviewed claimant’s x-rays

and MRI report, none of which revealed anything remarkable,

atypical, or abnormal. See generally Id. at 490. See also Id.

at 558 (report of Thomas Brundz, PA, making substantially

similar findings). In the “Assessment and Plan” portion of his

report, Dr. Ahn concluded:

A 43-year-old man with a history of neck and low back pain. Richard currently states that he is disabled, and I certainly would not state that he is disabled based on his neck and lower back. I have recommended a course of physical therapy and daily anti-inflammatory pill. Richard has refused this. His wife insists that “something is wrong.” I have told her that my primary diagnosis is disc degeneration based on the results of the MRI and x-rays, and the wife seemed very unsatisfied with this explanation. I have given Richard and his wife the names of 3 other surgeons, . . . that they can see as a second opinion, and, based on Richard’s refusal to proceed with treatment as recommended by myself, I will see him back p.r.n.

Id. (emphasis supplied).

9 In response, claimant’s wife wrote to Dr. Jones, noting

that Dr. Ahn’s opinions “hurt [claimant’s] case for receiving

disability,” and soliciting a statement from Dr. Jones

indicating that she was “not in agreement with Dr. Ahn.” Id. at

756 (emphasis in original). Dr. Jones completed a “Physical

Residual Functional Capacity Questionnaire” and a “Lumbar Spine

Residual Functional Capacity Questionnaire.” In them, she

opined that: (1) claimant suffers from mononeuritis multiplex,

with “variable but constant pain symptoms;” (2) pain or other

symptoms would interfere with claimant’s attention and

concentration frequently, if not constantly; (3) claimant could

likely walk less than one city block without rest or severe

pain; (4) claimant would require unscheduled breaks at work and

the ability to shift from a seated to standing position at will;

and (5) as a result of his impairments, claimant would likely be

absent from work more than four days each month. Id. at 747-55.

Claimant asserts that the ALJ erred by failing to afford Dr.

Jones’ opinions controlling weight.

While opinions from treating sources are typically afforded

great (if not controlling) weight, see generally Social Security

Ruling, Policy Interpretation Ruling Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions, SSR 96-

2p,

(July 2, 1996), there is no per se rule

10 requiring the ALJ to give greater weight to the opinion of a

treating source. To be entitled to controlling weight, a

treating source’s opinions must be “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and

[cannot be] inconsistent with the other substantial evidence in

[the] case record.”

(c)(2) and

416.927(c)(2).

Here, the opinions offered by Dr. Jones are inconsistent

with substantial evidence in the record. See, e.g., Admin. Rec.

at 215-17 (opinions of state agency physician Jonathan Jaffe,

M.D., that claimant could perform tasks consistent with “light”

work);

(opinions of state agency psychologist Laura

Landerman, Ph.D, finding, inter alia, that claimant’s

“statements are [only] partially credible, as he did not present

nor perform at recent CPPA as severely impaired as per self

report”); Id. at 558-59 (report of Thomas Brundz, P.A., who

opined that claimant walked normally, had normal reflexes and

strength in all extremities, and had a “fairly normal” MRI, with

“mild disc changes at L4-L5, but no significant central canal

foraminal stenosis” and “no nerve compression;”) Id. at 770-76

(reports of Ekaterina Hurst, M.D., who concluded that claimant’s

overall condition was both mild and improved, despite claimant’s

assertion a month earlier that his depression was “10” on a

11 scale of 1 to 10 and claim that anxiety prevented him from

working); Id. at 593-94 (report of Todd Noce, D.O., comparing

claimant’s earlier MRI with one performed in April of 2013, and

concluding that claimant suffers from “mild degenerative changes

within the cervical spine but no significant narrowing of the

spinal canal or neural foramina. There is no interval change

from prior study.”); Id. at 786 (report of Mark Powers, MSW,

from January of 2013, noting that claimant reported that he goes

“for 4 mile walks 2-3 times/week with his wife” (though

claimant’s wife questioned, but did not deny, that at the

hearing)). 2

Because the opinions of Dr. Jones were inconsistent with

substantial evidence in the record, and because the ALJ

adequately explained his reasons for discounting Dr. Jones’

2 Parenthetically, the court notes that claimant challenges the ALJ’s reliance on his statement about having taken 4-mile walks, two to three times a week. According to claimant, “A review of the record reveals a progress note dated January 21, 2013, from the plaintiff’s therapist Mark Powers, MSW, LICSW, who wrote: ‘However goes 4 mile walks 2-3 times/week with his wife.’ Read out loud and you say, ‘goes for mile walks 2 to 3 times a week with his wife.’ If read carefully, the meaning is clear. There is no other way to interpret this simple sentence.” Claimant’s memorandum (document no. 11-1) at 8. But, claimant misreads the record. Mr. Powers actually reported that claimant said that he “goes for 4 mile walks2-3 times/week with his wife.” Admin. Rec. at 786 (emphasis supplied). Claimant’s argument is, therefore, unavailing.

12 opinions, the court cannot conclude that the ALJ erred in

failing to afford those opinions controlling weight.

II. Claimant’s Credibility.

When determining a claimant’s RFC, the ALJ must review the

medical evidence regarding the claimant’s physical limitations

as well as his own description of those physical limitations,

including his subjective complaints of pain. See Manso-Pizarro

v. Secretary of Health & Human Services,

(1st

Cir. 1996). If the claimant has demonstrated that he suffers

from an impairment that could reasonably be expected to produce

the pain or side effects he alleges, the ALJ must then evaluate

the intensity, persistence, and limiting effects of the

claimant’s symptoms to determine the extent to which those

symptoms limit his ability to do basic work activities. Part of

that evaluation necessarily involves an assessment of claimant’s

credibility. See SSR 96-7p, Policy Interpretation Ruling Titles

II and XVI: Evaluation of Symptoms in Disability Claims:

Assessing the Credibility of an Individual’s Statements,

(July 2, 1996). And, in assessing the claimant’s

credibility, that ALJ should consider the following factors: the

claimant’s daily activities; the location, duration, frequency,

and intensity of the claimant’s alleged pain or other symptoms;

factors that precipitate and aggravate those symptoms; the type

13 dosage, effectiveness, and side effects of any medication the

claimant takes (or has taken) to alleviate pain or other

symptoms; and any measures other than medication that the

claimant receives (or has received) for relief of pain or other

symptoms.

See also Avery,

;

(c)(3) and 416.929(c)(3).

It is, however, the ALJ’s role to assess the credibility of

claimant’s asserted inability to work in light of the medical

record, to weigh the findings and opinions of both “treating

sources” and other doctors who have examined him and/or reviewed

his medical records, and to consider the other relevant factors

identified by the regulations and applicable case law. Part of

his credibility determination necessarily involves an assessment

of a claimant’s demeanor, appearance, and general

“believability.” Accordingly, if properly supported, the ALJ’s

credibility determination is entitled to substantial deference

from this court. See, e.g., McNelley v. Colvin, No. 15-1871,

, at *2 (1st Cir. Apr. 28, 2016) (“The

credibility determination by the ALJ, who observed the claimant,

evaluated his demeanor, and considered how that testimony fit in

with the rest of the evidence, is entitled to deference,

especially when supported by specific findings.”) (quoting

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

, 195

14 (1st Cir. 1987)); Irlanda Ortiz,

(holding that

it is “the responsibility of the [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 [Commissioner] not the courts”) (citation omitted).

Here, in reaching the conclusion that claimant was not

entirely credible when testifying about the disabling nature of

his impairments, the ALJ considered each of the relevant factors

identified above. See Admin. Rec. at 82-83. Additionally, as

noted above, there is evidence in the record which suggests that

claimant tended to overstate the symptoms of his impairments.

See, e.g., Id. at 214, 490. And, to the extent claimant

suggests his medical diagnoses necessarily support his

subjective complaints of disabling pain, see, e.g., Claimant’s

memorandum at 16 and 18, he is mistaken. Medical diagnoses,

such as “bulging disc,” Admin. Rec. at 558 and “cervical spine

with mild degeneration, no evidence of significant neurologic

impingement,” id. at 490, are “medical labels which carry no

readily discernible message about the physical capacities of an

individual suffering from the conditions they denote.” Class

Rosario v. Secretary of Health & Human Services,

(1st Cir. July 16, 1990). See also McKenzie v.

Commissioner, Social Security Administration,

at

15 *5 (6th Cir. May 19, 2000) (“[T]he mere diagnosis of an

impairment does not render an individual disabled nor does it

reveal anything about the limitations, if any, it imposes upon

an individual.”). As the United States District Court for the

District of Massachusetts has noted, “[f]or Social Security

disability purposes, the issue is not whether an impairment

exists, but whether it is sufficiently severe to prevent work.”

Stefanowich v. Colvin, No. CIV.A. 13-30020-KPN,

,

at *1 (D. Mass. Jan. 30, 2014) (citations omitted).

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

the Acting Commissioner’s memorandum (document no. 14-1) at 9-

15, the court concludes the ALJ did not err in making his

credibility finding.

III. Claimant’s Residual Functional Capacity.

Finally, claimant challenges the ALJ’s determination that

he retained the RFC to perform a range of light work. But

substantial record evidence supports the ALJ’s conclusion. For

example, the “Residual Functional Capacity” report completed by

state agency physician Jonathan Jaffe, M.D. (Admin. Rec. at 215-

17), as well as the Mental Health Evaluation Report - Adult”

completed by state agency psychological consultative examiner

Darlene Gustavson, Psy.D. (Id. at 507-12), are entirely

16 consistent with the ALJ’s RFC determination. Indeed, that RFC

is slightly more restrictive than the opinions rendered by those

“highly qualified” medical professionals, who are also “experts

in Social Security disability evaluation.”

(e)(2)(i). See also

(e)(2)(i). The

ALJ’s RFC determination is also consistent with claimant’s

repeated “normal” or “mild” clinical examination findings, as

well as the results of claimant’s diagnostic imaging. The only

notable exception is the “Physical Residual Functional Capacity

Questionnaire” completed by Jennifer Jones, D.O. Admin. Rec. at

747-55. But, as discussed above, the ALJ supportably concluded

that Dr. Jones’ opinions were entitled to “little weight,” in

light of the substantial record evidence that tended to

undermine them.

Conclusion

Judicial review of the ALJ’s decision is both limited and

deferential. This 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.

Consequently, the issue before the court is not whether it

believes claimant is disabled. Rather, the permissible inquiry

is “limited to determining whether the ALJ deployed the proper

legal standards and found facts upon the proper quantum of

17 evidence.” Nguyen v. Chater,

(1st Cir. 1999)

(citation omitted). 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

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, as

well as the arguments advanced by both the Acting Commissioner

and the 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 the ALJ’s decision (November 1,

2013). The ALJ’s assessment of claimant’s credibility, as well

as his RFC determination and his conclusions concerning the

18 opinions of Dr. Jones, are well-reasoned and adequately

supported by substantial evidence.

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

the Acting Commissioner’s thorough and persuasive legal

memorandum (document no. 14-1), claimant’s motion to reverse the

decision of the Commissioner (document no. 11) is denied, and

the Acting Commissioner’s motion to affirm her decision

(document no. 14) 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

August 12, 2016

cc: Judith E. Gola, Esq. Robert J. Rabuck, AUSA

19