UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gerald Ahola, Claimant

v. Case No. 16-cv-377-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Gerald Ahola, 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 March of 2014, 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 July 28, 2008. Claimant’s date last

insured was September 30, 2012. At the time of his alleged

onset of disability, claimant was 38 years old. His

applications were denied and claimant requested a hearing before

an Administrative Law Judge (“ALJ”).

In April of 2015, claimant, his attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. Six 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 Acting 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 “Motion for Order Reversing the

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

the Acting Commissioner filed a “Motion for an Order Affirming

the Decision of the Commissioner” (document no. 10). 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. 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),

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.”

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

Act places the 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

4 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

(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:

5 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).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

the ALJ’s 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: July 28, 2008. Admin.

Rec. at 14. Next, he concluded that claimant suffers from the

following severe impairment: congestive heart failure.

But, the ALJ determined that claimant’s impairment did not meet

or medically equal one of the impairments listed in Part 404,

6 Subpart P, Appendix 1.

Claimant does not challenge those

findings.

Next, the ALJ concluded that claimant retained the residual

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

sedentary work, subject to the following limitations: “he can

frequently and occasionally lift and/or carry up to 10 pounds,

and can push and/or pull up to 10 pounds. He can occasionally

climb ramps, stairs, ladders, ropes and scaffolds, and can

occasionally balance, stoop, kneel, crouch and crawl.” Id. at

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

claimant was not capable of performing any past relevant work.

Id. at 22. See also Id. at 50 (vocational expert’s testimony

about claimant’s work history, which was performed at the

“medium” exertional level).

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 23. Consequently, the

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

defined in the Act, from July 28, 2008, through the date of his

decision.

Discussion

Claimant challenges the ALJ’s decision on two grounds,

asserting that he erred by: (1) improperly evaluating the

medical evidence in assessing claimant’s residual functional

capacity; and (2) failing to properly account for claimant’s

subjective complaints of fatigue.

I. Claimant’s Residual Functional Capacity.

Claimant’s primary severe impairment is “a history of

cardiomyopathy, secondary to heavy recreational drug use,” which

included heroin and marijuana. See Admin. Rec. at 826. See

also Joint Statement of Facts (document no. 11) at 3; Admin.

Rec. at 624, 627, 632. In 2004, he received an implantable

cardioverter defibrillator (an “ICD”), to address “severe left

ventricular dysfunction.” Id. But, from 2008 through the

present, he has had sustained periods during which he has failed

to take prescribed medications and either cancelled or failed to

show up for medical appointments. See, e.g., Id. at 2-3; Admin.

Rec. at 255, 260, 263, 267, 270, 289, 291, 619.

8 In 2014, claimant received a new ICD unit, along with a new

atrial lead. Upon discharge, claimant was told that “he can

resume usual activity as long as he does not overdo it.” Admin.

Rec. at 257. According to claimant, that activity included

“work around the house and work on cars.” At that time he also

reported that, “normally, he can split wood and carry about his

activities without difficulty.” Id. at 289, 585. Claimant also

reported that he was “fairly active” but “fatigued at times” in

caring for his children, one of whom was very young at the time.

Id. at 559. In April of 2014, it was reported that, “Gerald

looks good overall and he is feeling improved. He does have

mild DOE1 however he is amazingly able to do most activities

without significant problems.” Id. at 561 (Notes of Mary

Macklin, APRN).

In June of 2014, state Disability Determination Services

physician Jonathan Jaffe, M.D., reviewed claimant’s medical

records and concluded that claimant could perform sedentary

work, and had the ability to stand and/or walk for up to two

hours each day, and could sit for a total of about six hours in

a traditional eight-hour workday. Admin. Rec. at 62. But, says

claimant, Dr. Jaffe did not have access to his complete medical

1 “DOE” is dyspnea (shortness of breath) on exertion.

9 records and, therefore, the ALJ erred in relying upon Dr.

Jaffe’s opinions.

It is not entirely clear precisely which records Dr. Jaffe

reviewed and whether he had access to claimant’s complete

medical record. See Admin. Rec. at 69 and 79. Claimant asserts

that although many of his medical records actually pre-date Dr.

Jaffe’s review, a substantial number of them appear to have been

printed (i.e., reproduced by his treating sources) after that

review. But, even if that is the case, the ALJ’s opinion makes

plain that the ALJ certainly had access to, and considered, all

of claimant’s medical history and treatment notes. And, neither

Dr. Jaffe’s opinion nor the ALJ’s conclusion that claimant

retains the residual functional capacity to perform a range of

sedentary work is inconsistent with claimant’s complete medical

history. As this court has previously observed:

[T]he fact that [a non-examining state agency physician] did not review later medical records does not necessarily preclude the ALJ from relying on his RFC assessment. “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 post-dating the reviewer’s assessment does not establish any greater limitations, see

at *8–

10 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.

Ferland v. Astrue,

,

, at *4 (D.N.H.

Oct. 31, 2011). See also Barup v. U.S. Soc. Sec. Admin.,

,

, at *7 (D.N.H. Mar. 31, 2017).

Here, Dr. Jaffe’s opinions are not inconsistent with

claimant’s subsequent medical records. For example, in a report

generated in March of 2014, Nurse Macklin noted that claimant

had been “working full time” (presumably at the medium

exertional level), and she advised him he could “resume usual

activity as long as he does not overdo it.” Admin. Rec. at 257.2

Given his shortness of breath, however, she did advise that, “if

possible,” he should scale back his work to part-time.

Two

months later, Nurse Macklin reported that, “Gerald is doing well

overall despite his low ejection fraction. His ICD is

interrogated with a report done in Paceart. There have been no

issues with his device. The cardiac compass report shows that

2 Although the record is not entirely clear, it appears that when claimant reported that he had been working full time, he was referencing work he was performing painting cars. See Admin. Rec. at 268 and 289. The vocational expert testified that such work was performed at the “medium” exertional level. Admin. Rec. at 50.

11 he is quite active every day.” Id. at 677. Such evidence

certainly supports the ALJ’s determination that, at a minimum,

claimant was capable of performing a range of sedentary work.

Viewed slightly differently, Nurse Macklin’s suggestion that

claimant scale back his work at the medium exertional level from

full-time to part-time does not compel the conclusion that he

was incapable of performing sedentary work on a full-time basis.

See generally Williams-Overstreet v. Astrue,

,

276–77 (7th Cir. 2010); Madrid v. Astrue,

(10th Cir. 2007); Piepgras v. Chater,

(8th Cir.

1996).

Moreover, in a report generated a year later and signed by

both Nurse Macklin and Charles Wicks, M.D., those treating

sources opined that claimant’s fatigue and/or dyspnea caused

only a “moderate limitation of physical activity,” he was

“capable of low stress jobs,” he could walk without rest or

severe pain for a distance of one to three city blocks, “sitting

[posed] no problem,” and he could stand and/or walk

intermittently for one to two hours. Admin. Rec. at 829.3 Those

3 The ALJ adequately explained the basis for his decision to discount portions of that report relating to claimant’s ability to sit, as well as his need to avoid pulmonary irritants. See Admin. Rec. at 21.

12 opinions from claimant’s treating sources, and information about

his daily activity level gleaned from his ICD, are entirely

consistent with the opinions of Dr. Jaffe. And, more

importantly, they are entirely consistent with the ALJ’s RFC

determination.4

Viewing the record as a whole, the court cannot conclude

that the ALJ erred in determining that, despite his exertional

and non-exertional limitations, claimant retains the residual

functional capacity to perform a range of sedentary work.

II. Claimant’s Fatigue and Shortness of Breath.

Next, the claimant asserts that, in reaching the conclusion

that he is not disabled, the ALJ failed to properly account for

his fatigue. The court disagrees. The ALJ acknowledged (and

discussed) claimant’s fatigue repeatedly in his order. See

4 There are, to be sure, letters in claimant’s medical records from Donald Chan, M.D., and Mary Macklin, APRN, opining that, in 2009-2010, claimant was “unable to return to work.” See Admin. Rec. at 615-17. But, those statements are unaccompanied by any discussion of claimant’s symptoms that would support such a conclusion. And, determining whether claimant is disabled is an issue reserved to the Commissioner. See

(d)(1) (The Commissioner is “responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.”).

13 Admin. Rec. at 16 (acknowledging claimant’s assertion that he

feels fatigued when walking up stairs); 20 (noting that claimant

reported that he is tired on Sundays, but able to function

normally the rest of the week).

Moreover, there is more than adequate medical evidence in

the record to support the ALJ’s conclusion that, despite

claimant’s asserted fatigue, he remains capable of performing a

range of sedentary work. See, e.g., Admin. Rec. at 255

(reporting that claimant had been doing well until he stopped

taking his medications, at which point he developed fatigue and

dyspnea (shortness of breath); 257 (noting that, despite

complaints of fatigue, claimant could “resume usual activity”

which at the time included full-time work - though he was

advised to “go back part-time if possible”); 309

(Emergency/Walk-in Care Report of February, 2010, at which

claimant denied any fatigue); 497 (June of 2008 follow-up visit

at Concord Hospital during which claimant denied any fatigue);

552 (May of 2014 Concord Hospital visit at which claimant denied

any fatigue); 559 (noting that claimant has four children - one

of whom was only 1 year old at the time - and despite feeling

fatigued at times, claimant remains fairly active). Indeed,

when asked whether claimant suffered from a marked limitation of

14 physical activity as a result of fatigue, Nurse Maklin and Dr.

Wicks responded “no,” and opined that claimant had only a

“moderate limitation of physical activity.” Id. at 828.

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

different conclusion, so long as it is supported by substantial

15 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 (June 5, 2015). The ALJ’s

determination of claimant’s residual functional capacity, his

reliance upon the medical opinions of Dr. Jaffe, and his

decision to discount certain aspects of the opinions given by

Nurse Macklin and Dr. Wicks, are well-reasoned and adequately

supported by substantial documentary evidence. So, too, is the

ALJ’s conclusion that claimant is capable of performing a range

of sedentary work despite his asserted disabling fatigue.

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

16 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.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

June 1, 2017

cc: Laurie S. Young, Esq. T. David Plourde, Esq.

17