UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Russell John Godin

v. Case No. 16-cv-461-PB Opinion No.

U.S. Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Russell John Godin challenges the denial of his claim for

Social Security disability insurance (“SSDI”) benefits and

supplemental security income (“SSI”). He argues, among other

things, that the administrative law judge (“ALJ”) overlooked

relevant evidence when determining his residual functional

capacity (“RFC”) and improperly relied on an opinion from a

vocational expert that jobs existed in the national economy that

Godin was capable of performing. The Acting Commissioner seeks

an order affirming the decision. For the following reasons, I

affirm.

I. BACKGROUND

A. Facts

Godin was 48 years old at the time of the ALJ’s decision.1

1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. 11. Because that Doc. 11 at 2. He worked in the past as a flagger, a ski lift

attendant, a foreman for a steel construction company, a

delivery driver, and a tow truck operator. Doc. 11 at 2. He

claimed that he had been disabled since 2013.

Godin’s first documented health problem was neck pain,

which he reported in November, 2010. Doc. 11 at 2. He also

reported left and right ankle pain in 2013. Doc. 11 at 2.

Godin also claimed that he suffered from stress and “skin

lesion; myalgia; coronary artery disease (CAD); myocardial

perfusion scan with stress test; abnormal headaches;

hypertension; question of sleep apnea; obstructive

hyperlipidemia; insomnia; depression; major dyspnea; chest

discomfort; risk of sleep apnea; palpitations; fatigue; ankle

pain; morbid obesity; broken CSA; chronic neck pain; history of

acute cervical strain; and cervical radiculopathy.” Doc. 11 at

3.

Despite claiming to have been disabled since September 3,

2013, Doc. 11 at 2, Godin admitted that he had worked as a tow

truck operator from June 2014 through February 2015.

Administrative Transcript (“Tr.”) 51, 57. During this time, he

worked anywhere from 30 hours a week to 60 hours a week. Tr.

51-52.

joint statement is part of the court’s record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 B. Procedural History

Godin filed his claim for both SSDI and SSI on August 2,

2013. The Social Security Administration (“SSA”) denied his

claim on November 7, 2013. Tr. 155. Godin requested a hearing

before an ALJ. Tr. 165. The ALJ conducted a hearing on Godin’s

claim on August 11, 2015. Tr. 14.

The ALJ denied Godin’s claim in a written decision issued

on September 3, 2015. In reaching this decision, the ALJ

applied the five-step analysis required by

(for SSDI claims) and

(for SSI claims). At

step one, the ALJ determined that Godin was not currently

engaged in substantial gainful activity. Tr. 17. At step two,

she determined that Godin had the following severe impairments:

“degenerative joint disease of the ankle, obesity, status post

stent insertion, a major depressive disorder, and substance

abuse.” Tr. 17. At step three, she concluded that Godin did

not have any of the impairments listed in 20 C.F.R., Subpart P,

Appendix 1. Tr. 17-19. At step four, she determined that

Godin’s RFC allowed him to do “light work as defined in [§]

404.1567(b) and [§] 416.967(b) except he could[:]

stand or walk for up to six hours in an eight-hour day, but no more than one half hour at a time;

sit for six hours in an eight-hour day, with breaks every two hours;

never climb ladders, ropes, or scaffolds, but occasionally climb ramps or stairs. . . ; 3 occasionally reach overhead;

occasionally stoop, kneel, and operate foot controls, but never crouch or crawl. . . ;

work in an environment that does not include concentrated exposure to extreme vibration, heat, or potential hazards like moving machinery, unprotected heights[,] or uneven terrain. . . ; [and]

perform only routine work tasks day-to-day.” Tr. 19.

In light of this RFC, the ALJ concluded that Godin could not

return to his past relevant work. Tr. 26. Nevertheless, at

step five, after considering the opinion of a vocational expert,

the ALJ determined that Godin could work in a number of other

jobs that existed in the national economy. Tr. 26-27. These

included, “small parts assembler,” “security guard,” “recreation

aide,” “garment sorter,” “cashier,” “car wash attendant,” or

“vending machine attendant.” Tr. 27. The ALJ thus found that

Godin was not disabled and denied his claims for both SSDI and

SSI. Tr. 27-28.

On October 7, 2015, Godin sought review of the ALJ’s

decision before the Appeals Council. Tr. 8-9. The Appeals

Council denied Godin’s request for review on August 22, 2016.

Tr. 3-5.

II. STANDARD OF REVIEW

I am authorized under

(g) to review the

pleadings submitted by the parties and the administrative record 4 and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. That review is limited,

however, “to determining whether the [ALJ] used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, as long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. If,

however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or

judg[ed] matters entrusted to experts,” her findings are not

conclusive. Nguyen v. Chater,

(1st Cir. 1999)

(per curiam). The ALJ determines issues of credibility and

draws inferences from evidence in the record. Irlanda Ortiz,

. The ALJ, and not the court, must resolve

conflicts in the evidence.

5 III. ANALYSIS

Godin challenges the ALJ’s decision by claiming that she

ignored or improperly evaluated critical evidence when

determining Godin’s RFC, and improperly relied upon the

vocational expert’s inaccurate opinion testimony when finding

that Godin could perform a significant number of jobs in the

national economy. I address each argument in turn.

A. The ALJ’s Evaluation of the Evidence and RFC Determination

When evaluating a claim for Social Security benefits, the

ALJ must consider all evidence in the record and evaluate any

conflicting evidence. Gonzalez-Garcia v. Sec’y of Health &

Human Servs.,

(1st Cir. 1987). The ALJ is free to

accept each piece of evidence completely, partially, or not at

all, provided that she does so on “well-supported grounds.” See

Molina v. Astrue,

(9th Cir. 2012). “[I]f an

ALJ has provided well-supported grounds for rejecting testimony

regarding specified limitations, we cannot ignore the ALJ’s

reasoning and reverse the agency merely because the ALJ did not

expressly discredit each witness who described the same

limitations.”

Here, Godin claims that the ALJ erred by ignoring or

improperly weighing: a Work Activity Questionnaire; Dr. Laura

Landerman’s opinion; the July 2, 2013 opinion of his primary

care provider; x-ray results from July 11, 2013; Dr. Rock’s

6 opinions from July 29, 2013 and August 29, 2013; Dr. Trina

Jackson’s November, 2013 opinion that Godin suffers from major

depressive disorder; Godin’s January 21, 2014 visit with AVH

surgical associates; his emergency room visit from March 11,

2014; his cardiovascular stress test from September 2, 2014; and

his Functional Capacity Evaluation form from November 11, 2010.

I am unpersuaded by Godin’s arguments and explain my conclusion

by addressing each piece of evidence in turn.

The ALJ permissibly rejected the Work Activity

Questionnaire because it was completed by Godin’s former

supervisor, who was not “a medical source or other person with

specialization,” and because he continued to work for several

years after the completion of the questionnaire. Tr. 25. See

Valentine v. Comm’r Social Sec. Admin.,

(9th

Cir. 2009) (rejecting the opinion of a former supervisor who

testified on behalf of a claimant out of sympathy); Allen v.

Colvin, No. 15-cv-04162,

, at *16 (S.D. W.Va.

March 18, 2016) (discounting evaluation of claimant’s knee

problem because the evaluation took place two years before

claimant ceased working).

Substantial evidence also supports the weight the ALJ gave

to Dr. Landeman’s opinion. Although the ALJ gave Dr. Landeman’s

opinion “significant weight,” she discounted the portion of the

opinion in which Dr. Landeman said that Godin required a semi-

7 isolated work station and a non-critical supervisor this was

inconsistent with both Godin’s treatment history and Dr.

Jackson’s opinion, which was entitled to more weight because Dr.

Jackson was an examining physician. Tr. 25. An ALJ is entitled

to make such judgments. See Berrios Lopez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (it is

appropriate to give the opinion of an examining physician more

weight than that of a non-examining physician); Rodriguez Pagan

v. Sec’y of Health & Human Servs.,

(1st Cir. 1987)

(ALJ can discount the opinion of a doctor if it is inconsistent

with other evidence in the record).

The ALJ also noted the symptoms that Godin reported in his

July 2, 2013 visit to his primary care provider, including

“atypical chest pain and heart ‘fluttering’ . . . three to four

times per week,” but concluded that “these symptoms appear to be

quite mild.” Tr. 21, 667. An ALJ ordinarily can discount a

claimant’s allegation that he has a medical issue if the

claimant has not sought treatment for the issue, Irlanda Ortiz,

, continued to work after being diagnosed with

the issue, Allen,

, at * 16, or consulted a

treating source who stated that the issue should not limit the

claimant. Foley v. Astrue, No. 09-10864-RGS,

,

at *8 (D. Mass. June 17, 2010). The ALJ permissibly gave

Godin’s heart troubles little weight because he sought “only

8 erratic and inconsistent treatment” for his heart problems, he

continued to work long after first reporting the heart problems,

and one of his own doctors, Dr. Daniel Van Buren, stated that

his heart problems should not limit his ability to work. Tr.

21.

The ALJ noted that Godin had an x-ray on July 11, 2013,

which revealed “degenerative changes toward the medial side of

the ankle joint.”2 Tr. 20-21, 663. The ALJ, however,

permissibly discounted the severity of Godin’s ankle injury

because he did not seek corrective surgery. See Wilson v.

Colvin,

(D.N.H. 2010) (ALJ may consider

the absence of treatment for a particular injury as a factor in

determining whether the claimant’s allegations of injury are

credible).

The ALJ considered Dr. Jackson’s November, 2013 report,

which stated that Godin suffered from major depressive disorder

and “presented as poorly groomed, . . . with poor eye contact,

no difficulty answering questions, occasional tearfulness,

irritable mood, blunted affect, low-average intelligence, no

deficits in long-term memory, logical and organized thought

process and content, and normal functioning on the Folstein Mini

Mental Status Examination.” Tr. 23. The ALJ acknowledged that

2 The ALJ also evaluated the evidence of Godin’s ankle issues in Dr. Rock’s reports from July 29, 2013. Tr. 20, 21, 22, 698, 704. 9 Godin suffered from “major depressive disorder” in developing

his RFC determination, but noted that “overall, this objective

clinical presentation is quite mild and fails to support any

limitations beyond those cited in the residual functional

capacity above.” Tr. 23. This determination was permissible

both because Godin himself stated that his mental impairments

were “situational” and because Godin was not receiving treatment

for them. Tr. 21. See Wilson,

.

While the ALJ never specifically discussed Godin’s January

21, 2014 visit to AVH surgical associates, she did consider the

medical issues he complained about during that visit, which were

mentioned elsewhere in the ALJ’s decision. During the January

21, 2014 visit, Godin stated he had, “trauma/injury, recent

weight loss . . . hearing impairment, tinnitus, neck pain . . .

palpitations, edema, claudication . . . nausea, indigestion,

flatulence . . . urine frequency, nocturia, Polyuria . . .

arthralgia, joint stiffness, swelling of joints, shoulder pain,

arm pain, knee pain, ankle/foot pain, heel pain, muscle cramps,

weakness, recurrent sprains . . . pruritus, insect bite, rash,

tumors/lumps . . . memory loss . . . dizziness . . . clumsiness

. . . paresthesias . . . headache . . . localized weakness . . .

loss of balance . . . heat intolerance . . . anxiety,

depression, nervous breakdown, irritability, [and]

restlessness.” Tr. 714. All of these symptoms (with the

10 exception of “indigestion”) were present during Godin’s July 29,

2013 visit to the doctor, which the ALJ specifically considered

in her opinion. Tr. 20, 21, 22, 704. Under these

circumstances, the ALJ’s failure to specifically discuss the

January 21, 2014 visit was not reversible error. See Grenier v.

Colvin,

(ALJ need not mention every piece of

evidence in the record if it is cumulative of other evidence).

While the ALJ did not specifically mention Godin’s March

11, 2014 visit to emergency room where he complained of chest

pain, she did discuss his September 2, 2014 cardiovascular

stress test, which did not reveal any significant heart damage.

Tr. 21. She also noted that Godin’s cardiologist, Dr. Daniel

Van Buren, determined that Godin “remains asymptomatic and is

active without specific limitations.” Tr. 21. The ALJ also

concluded that Godin’s heart issues were “quite mild,” were

unaccompanied by any chest pain, and were unsupported by the

September, 2014 testimony. Tr. 21-22. Therefore, the ALJ

properly relied on the opinion of Godin’s treating physician

when assessing his heart problems even though the ALJ did not

specifically discuss the emergency room visit. See Douglas v.

Colvin,

(internal citations omitted) (“A

treating source’s opinion is entitled to controlling weight so

long as that opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

11 inconsistent with the other substantial evidence.’”).

The ALJ also properly considered Godin’s November 11, 2010

Functional Capacity Evaluation. Tr. 24. This evaluation “found

that the claimant could perform a fairly wide range of light-

exertional work, but would be unable to stoop, crouch, or engage

in prolonged neck positioning.” Tr. 24. The ALJ discredited

some of the limitations identified in the evaluation because it

was administered “almost three months prior to the amended

alleged onset date” of his disability, Tr. 24, but she

nevertheless incorporated much of the evaluation into his RFC,

including the limitations on stooping and crouching. Tr. 19.

Under these circumstances, the ALJ did not err in failing to

include all of the limitations identified in the evaluations

into Godin’s RFC. See Carmickle v. Comm’r of Social Sec.

Admin.,

(9th Cir. 2008) (“Medical opinions

that predate the alleged onset of disability are of limited

relevance.”).

In summary, I am unpersuaded by Godin’s claims that the ALJ

ignored or improperly evaluated critical evidence when

determining Godin’s RFC.

B. Vocational Expert Testimony

Godin also argues that the ALJ erred by relying upon the

vocational expert’s testimony, which he claims was based on a

hypothetical question that did not include all of Godin’s

12 relevant severe impairments. He also faults the expert’s

testimony because he did not specify whether the jobs listed

were full time or part time, he did not state that the jobs

listed were currently available, and his testimony was

inconsistent with the directory of occupational titles (DOT).

1. Hypothetical question

For the ALJ to rely on the opinion of a vocational expert

when determining whether a claimant is disabled, the vocational

expert’s opinion must be based on a hypothetical question that

“accurately portray[s] a claimant’s physical and mental

impairments.” Ealy v. Comm’r of Social Sec.,

(6th Cir. 2010); Rose v. Shalala,

(1st Cir.

1994); Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982).

Here, although the ALJ’s hypothetical question contained

all of the limitations identified in Godin’s RFC, Godin

nevertheless claims that the hypothetical was incomplete because

it did not include “the limitations from Dr. Landeman’s

assessment,” “the evidence submitted by plaintiff’s previous

employer” (the Work Activity Questionnaire), “the functional

capacity evaluation,” and “the medical records of the

plaintiff’s treating orthopedic doctor, Dr. Rock.” Doc. 6 at

15. This argument is a nonstarter because, as I have explained,

the ALJ had already considered and rejected all of this evidence

13 when determining Godin’s RFC, and therefore she properly

excluded it from the hypothetical question. Tr. 19.

2. Other issues with the vocational expert’s opinion

Godin argues that the vocational expert erred by not

specifying whether the jobs that Godin could still perform were

full time or part time jobs. Godin claims that Social Security

Ruling (SSR) 96-8P requires a vocational expert to specify

whether the jobs the claimant can supposedly perform are full

time or part time.

. I disagree. SSR 96-8P

merely says that an “RFC is an assessment of an individual’s

ability to do sustained work-related physical and mental

activities in a work setting . . . [for] 8 hours a day, for 5

days a week. . .” It has nothing to do with the vocational

expert’s opinion, which is based on a hypothetical claimant with

the same relevant severe impairments as the claimant. In fact,

there is no requirement that the vocational expert testify to

only full time jobs, as opposed to part time jobs. Brault v.

Social Sec. Comm’r,

, 450 n.6 (2d Cir. 2012) (“We

reject Brault’s argument that the ALJ erred by allowing the

V[ocational] E[expert] to provide employment numbers that must

have included part-time positions . . .”); see Liskaitz v.

Astrue,

(7th Cir. 2009).

Godin also claims that the vocational expert erred by not

specifying whether the jobs that a hypothetical claimant could

14 perform were currently available. Once again, Godin does not

cite a single case in support of his argument that this error is

sufficient to reverse the ALJ’s decision. In any event, I infer

from the ALJ’s question that the vocational expert was referring

to jobs that were currently available because his testimony

about the jobs that Godin could still perform was given in

response to the question, “[w]hat kind of work, if any, exists

for an individual with these limitations (emphasis added)?” Tr.

at 73.

Finally, Godin claims that the vocational expert’s opinion

should be disregarded because it specified, inconsistently with

the DOT, the number of positions in the national economy for

each job Godin could perform. While the vocational expert’s

opinion listing which jobs the claimant can continue to perform

should be consistent with the DOT, SSR 00-4P,

,

the fact that the expert listed the number of jobs in each

category does not make her opinion inconsistent with the DOT.

See Brault v. Social Sec. Admin. Comm’r,

(2d

Cir. 2012) (“[T]he DOT . . . just defines jobs. It does not

report how many such jobs are available in the economy.”).

Here, the vocational expert properly relied upon the

Selected Characteristics of Occupations (“SCO”) to determine the

number of available jobs. Tr. 86. See Vandemark v. Colvin, No.

13-CV-1467,

, at *12 (N.D. N.Y. March 11, 2015).

15 There is no indication that the vocational expert’s listing of

the number of jobs that Godin could perform was inconsistent

with the DOT. Furthermore, even if the number of jobs listed by

the vocational expert did diverge from the DOT, such a

discrepancy would not require reversal of the ALJ’s decision.

See Brault,

.

IV. CONCLUSION

For the aforementioned reasons, I grant the Acting

Commissioner’s motion to affirm (Doc. No. 9) and deny Godin’s

motion to reverse (Doc. No. 6). The clerk is directed to enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge November 16, 2017

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

16