UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nathan Douglas Seguin, Claimant

v. Case No. 15-cv-121-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,

Nathan Seguin, 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,

, 1381-1383c (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.

1 Factual Background

I. Procedural History.

In May 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 December 1, 2011. Claimant was 27 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 attorney, and an

impartial vocational expert appeared before an ALJ, who

considered claimant’s applications de novo. Three weeks later,

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 for

review. 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.

2 Claimant then filed a AMotion for Order Reversing Decision

of the Commissioner@ (document no. 8). In response, the Acting

Commissioner filed a AMotion for Order Affirming the Decision of

the Commissioner@ (document no. 11). 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. 12), 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 &

3 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

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 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 &

4 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

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also 20 C.F.R. ''

404.1512(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,

,

5 6 (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.

42 U.S.C. ' 423(d)(2)(A). See also 42 U.S.C. ' 1382c(a)(3)(B).

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 20 C.F.R.

'' 404.1520 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: December 1, 2011. Admin.

6 Rec. at 16. Next, he concluded that claimant suffers from the

following severe impairment: “disc disease of the lumbar spine

(mild).”

But, the ALJ determined that claimant’s

impairment did not meet or medically equal one of the

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

Rec. at 17.

Next, the ALJ concluded that claimant retained the residual

functional capacity (ARFC@) to perform the exertional demands of

“medium” work. 1 He noted, however, that claimant cannot perform

jobs that involve standing and walking for more than six hours

during the day, sitting for more than 6 hours each day, or more

than occasional stooping. Admin. Rec. at 17. In light of those

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 restrictions, the ALJ concluded that claimant was not capable of

performing any past relevant work - most, if not all, of which

was performed at the “heavy” exertional level. Id. at 20-21.

See also Id. at 41 (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.” Id. at 21-22. Consequently, the

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

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

Discussion

Claimant challenges the ALJ=s decision on three grounds,

asserting that he erred by: (1) ignoring substantial medical

evidence in concluding that portions of claimant’s testimony

were not entirely credible; (2) failing to properly recognize

8 claimant’s limited ability to read, write, and spell; and (3)

erroneously calculating claimant’s residual functional capacity.

I. Claimant’s Credibility.

Claimant challenges the ALJ’s conclusion that his

complaints of disabling back pain were not entirely credible.

Specifically, claimant asserts that the “Commissioner does not

consider all of the substantial medical evidence in her analysis

and completely disregards, incorrectly interprets and/or

improperly discounts the overwhelming substantial medical

evidence.” Claimant’s memorandum (document no. 8) at 4.

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). When, as here, the claimant has demonstrated that

he suffers from an impairment that could reasonably be expected

to produce the level of pain he alleges, the ALJ must then

evaluate the intensity, persistence, and limiting effects of the

9 claimant’s symptoms to determine the extent to which those

symptoms limit his ability to do basic work activities.

[W]henever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual=s own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . ..

In recognition of the fact that an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual’s statements.

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). Those factors include the claimant’s daily

activities; the location, duration, frequency, and intensity of

the claimant’s pain or other symptoms; factors that precipitate

10 and aggravate the symptoms; the type 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,

; 20 C.F.R. ' 404.1529(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 claimant and/or

reviewed his medical records, and to consider the other relevant

factors identified by the regulations and applicable case law.

Part of the ALJ’s 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,

11 especially when supported by specific findings.”) (quoting

Frustaglia v. Secretary of Health & Human Services,

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

(holding that it is Athe 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@).

Here, in reaching the conclusion that claimant was not

entirely credible when he asserted that he needed to spend

substantial portions of the day in bed, was unable to sleep, and

was disabled by virtue of back pain, the ALJ considered, among

other things, the following. First, the ALJ noted that shortly

before his alleged onset of disability, claimant reported that

he had begun working in construction and was feeling upbeat,

reported that prescribed medications had “greatly improved his

pain,” and stated that he found it possible to work at home with

“only mild interruptions from pain.” Admin. Rec. at 20 (citing

Admin. Rec. at 300). And, one month prior to his alleged onset

date, claimant reported that he was “eating and sleeping well.”

One month after his alleged onset, claimant reported that

he “has found good relief” for his back pain with the use of

12 oxycodone 10mg, three time daily. See, e.g., Id. at 299. The

ALJ also noted that, in April of 2013, claimant reported a

recurrence of back pain, caused by “overuse” of his back while

raking leaves in his yard – an activity inconsistent with his

reported activities of daily living. Id.

In making his credibility determination, the ALJ also

observed that none of claimant’s treating sources described him

as disabled or unable to work. Id. at 20. Moreover, as

discussed more fully below, that ALJ also found not credible

claimant’s assertion that he is unable to read or write, in

light of educational testing records that repeatedly showed that

claimant scored in the low-average realm on reading and

comprehension testing. See, e.g., Admin. Rec. at 533. Finally,

the ALJ noted that, “the medical evidence is replete with

instances of the claimant’s overuse of narcotic medications,

illegal purchase of narcotic medications and use of illegal

drugs such as marijuana and cocaine. This evidence, along with

his purported illiteracy, casts significant doubt about his

credibility.” Id.

13 In light of the foregoing, the court cannot conclude that

the ALJ neglected to consider any of the relevant factors, or

that he erred in making his assessment of claimant=s credibility.

To be sure, there is substantial evidence in the record

supportive of claimant’s assertion that he experiences chronic

back pain. Importantly, however, there is also substantial

evidence in the record to support the ALJ’s conclusion that his

subjective complaints about the disabling nature of that pain

are over-stated.

II. Claimant’s Ability to Read, Write, and Spell.

Next, claimant asserts that the ALJ failed to properly

acknowledge and consider his “marked/severe limitations in the

areas of reading, spelling and writing.” Claimant’s Memorandum

at 9. But, as the Commissioner points out, substantial evidence

in the record supports the ALJ’s conclusion that claimant’s

deficits are not as severe as he suggests. Although claimant

has not undergone any recent testing, the record contains the

results of several academic tests he underwent while in grade

school. Those tests revealed that, from the ages of about five

through fourteen, claimant routinely demonstrated average

general intelligence, see, e.g., Admin. Rec. at 511, and he

14 showed the ability to produce written statements that were

“generally well-organized and contained well-formulated

sentences,” Id. at 498. At age twelve, he possessed “academic

skills that are within the average range in the areas of

Mathematics Reasoning, Reading Comprehension, Listening

Comprehension, Oral Expression and Written Expression. Basic

Reading, Spelling, and Numerical Operations subtest standard

scores [were] below average.” Id. at 499. A year later,

results of claimant’s testing revealed that his scores were

“within the average range in the areas of Mathematics Reasoning,

Listening Comprehension, Oral Expression and Written Expression.

Scores on the Reading Comprehension [were] in the low average

range. Basic Reading, Spelling and Numerical Operations scores

[were] in the low range.” Id. at 502. But, as one of the

psychologists who administered claimant’s testing observed,

although comparisons between claimant’s expected and his actual

test scores showed a significant discrepancy in reading,

spelling, and comprehension, that “pattern of weaknesses is

commonly observed in students with Attention Deficit Disorder,

15 especially those students who, like Nathan, are of at least

average general intelligence.” Id. at 512. 2

Moreover, as the Acting Commissioner notes, claimant

previously worked as a heating and air conditioner

installer/servicer/helper (DOT Code No. 637.644-010) - a job

that has a “language development” rating of two (on a scale of

one to six), a “reasoning development” rating of three (out of

six), and a “specific vocation preparation” level of six (out of

nine). See Admin. Rec. at 42. The ALJ found that he could work

as a merchandise marker (DOT Code No. 209.587-034), which has LD

rating of one (one lower than claimant’s prior job), an RD of

two (one lower than claimant’s prior job), and an SVP of two

(four lower than claimant’s prior job). Claimant has not

explained how his difficulties with reading and writing have

become worse over the intervening years since he worked as a

heating and air conditioner installer/servicer/helper, nor has

he shown that his problems in those realms would render him

2 Parenthetically, the court notes that claimant does not assert that he currently suffers from, or at any time since his alleged onset of disability he has suffered from, attention deficit disorder.

16 incapable of performing the responsibilities of merchandise

handler.

Given the record evidence, as well as the ALJ’s supportable

determination that claimant’s testimony on this issue was less

than entirely credible, the court is constrained to conclude

that there is adequate (i.e., substantial) evidence in the

record to support the ALJ’s conclusion that “claimant’s

assertion that he is unable to read . . . is inconsistent with

educational records.” Id. at 20.

III. Claimant’s Residual Functional Capacity.

Finally, claimant says the ALJ’s RFC determination is not

supported by substantial evidence. As noted above, the ALJ

concluded that claimant retained the residual functional

capacity to perform medium work, except he could stand, walk, or

sit for only six hours during a typical work day, and he was

limited to only occasional stooping. Admin. Rec. at 17.

Claimant asserts that the ALJ did “not afford any meaningful

weight to arguably the best evidence in this case, the objective

MRI testing results, conducted in November 2011, within a month

of the claimant’s alleged onset date.” Claimant’s memorandum at

17 5. According to claimant, that “objective evidence of record

clearly supports [the assertion] that [he] has a disk herniation

at L5-S1.” Id. Contrary to claimant’s suggestion, no one

denies that he has a herniated disc. Indeed, the ALJ

acknowledged that claimant’s MRI testing in November of 2011

revealed “disc herniation at L5-S1.” Id. at 19. But, the ALJ

also noted that approximately six months later, claimant

returned to work building decks. And, the fact that claimant

was able to return to work following his diagnosis illustrates

an important point: medical diagnoses, such as “herniated disc,”

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,

1009). See also McKenzie v. Commissioner, Social Security

Administration,

at *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

18 sufficiently severe to prevent work.” Stefanowich v. Colvin,

No. CIV.A. 13-30020-KPN,

, at *1 (D. Mass. Jan.

30, 2014) (citations omitted).

Here, the court’s review of the record suggest that while

no one disputes that claimant has a herniated disc and suffers

from back pain, not one of his treating sources has opined that

his condition is disabling. Claimant does not argue otherwise.

And, as noted above, the ALJ supportably concluded that

claimant’s subjective complaints of disabling back pain were not

entirely credible.

But, says claimant, in concluding that he was not disabled

by reason of his back pain, the ALJ impermissibly gave too much

weight to the opinion provided by non-examining, state agency

physician Meghana C. Karande, M.D. After reviewing claimant’s

medical records, Dr. Karande opined that he retained the RFC for

medium work. Admin. Rec. at 52. The ALJ determined that Dr.

Karande’s opinion was consistent with the medical evidence and

afforded her opinion “great weight.” Id. at 20. Claimant

challenges the ALJ’s reliance upon Dr. Karande’s opinion on

grounds that it necessarily failed to take into account

19 subsequent medical testing, as well as an injury he sustained in

September of 2012. That argument falls short, however. As the

Acting Commissioner notes, official agency guidance provides

that medical opinions that pre-date other evidence in the record

may be afforded substantial weight, so long as they are

consistent with subsequently-obtained medical evidence. See SSR

96-6p, Policy Interpretation Ruling Titles II and XVI:

Consideration of Administrative Findings of Fact by State Agency

Medical and Psychological Consultants,

at *2

(July 2, 1996).

According to claimant, the ALJ erred in giving substantial

weight to the opinion of Dr. Karande because she was unaware of

his injury in September of 2012, when he says he fell and

fractured his tailbone. The evidence of record on that point

is, however, conflicting at best. When claimant initially

presented to Huggins Hospital, he was examined by Scott Hobson,

M.D., who reported that claimant “had x-rays of the coccyx,

lumbar spine, cervical spine and right hip. They were all

normal except there is a fractured coccyx with minimal

displacement.” Admin. Rec. at 239. The following day, however,

a radiologist examined claimant’s x-rays and reported: “No

20 fractures or dislocations identified. No significant bony or

soft tissue abnormality is identified. Impression: Negative

exam.” Id. at 380.

But, even assuming that claimant did fracture his coccyx in

September of 2012, he has not shown how that injury, either

alone or in combination with his other impairments, is

sufficient to undermine the ALJ’s reliance on the opinion of Dr.

Karande. Nor does it undermine that ALJ’s conclusions regarding

claimant’s RFC. See, e.g., Id. at 413 (November, 2012,

examination notes of Thomas Brudz, PA, containing no reference

to any fracture of claimant’s coccyx, but noting claimant

“stands without any scoliosis. He ambulates with a nonantalgic

gait and is able to toe and heel walk. There was no tenderness

to any point of his spine, buttock or greater trochanter. He

has full lumbar flexion going towards his ankles with some

tightness in his low back, and he extends about 30 degrees with

some left-sided low back pain. His incision was intact and all

dermatonal patterns of both lower extremity. His reflexes are

2+ and symmetrical at the knees and ankles. Motor testing is

5/5 in both lower extremity. Straight leg raise and crossed

straight leg raise are negative. Hip range of motion was full

21 and pain-free. Faber’s test is negative but did cause some left

groin discomfort. There is no clonus and negative Babinski.

Distal pulses are intact.”).

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

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 arguably could justify a

22 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 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 (October 24, 2013). The ALJ’s

assessment of claimant’s credibility, as well as his RFC

determination and his conclusions concerning claimant’s alleged

illiteracy, are well-reasoned and adequately supported by

substantial documentary evidence.

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

23 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.

____________________________ Steven J. McAuliffe United States District Judge

July 21, 2016

cc: Christine W. Casa, Esq. T. David Plourde, Esq.

24