UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harry Herman Packer

v. Case No. 17-cv-260-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Harry Herman Packer challenges the denial of his claim for

social security disability insurance (SSDI) benefits and

supplemental security income (SSI) under Title II and Title XVI

of the Social Security Act.

; 42 U.S.C. § 1381a.

He argues that the administrative law judge (ALJ) erred by

determining that his residual functional capacity (RFC) was

greater than the evidence showed and by finding that he could

still perform some work at step five. The Acting Commissioner

moves for an order affirming the decision. For the following

reasons, I affirm.

I. BACKGROUND

A. Facts

In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 17.

Because that 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.

Packer was a 41 year-old man at the time of his amended

alleged onset date. Administrative Record (AR) at 23, 127. He

had worked as “a vinyl cutter . . . van driver . . . auto parts

counter [delivery man] . . . and manager [of an] auto parts

[store],” prior to his application for benefits. AR at 34.

Packer is morbidly obese and has several attendant physical

impairments including type II diabetes, diabetic neuropathy,

orthostatic hypertension, high cholesterol, and osteomyelitis,

which led to the amputation of one of his toes. AR 23, 30. He

claims that his neuropathy affects his coordination and fine

motor skills in his hands. AR 29. He has also been a three-

pack-a-day smoker for a decade and suffers restrictive lung

disease and sleep apnea as a result. AR 23-24. Additionally,

Packer suffers from several mental impairments, including

depression, an anxiety disorder, and a personality disorder. AR

31. He claims that his personality disorder prevents him from

getting along with others, which led to his termination from

2 several jobs. AR 385.

Packer’s first physical problem was chest pain, which he

began experiencing in 2008. AR 27. After suffering this

initial chest pain, he stopped playing sports, but continued to

work as a manager at an automotive parts store until 2012. AR

27-28, 385, 390. He has not worked regularly since 2012,

spending most days in his room, watching television and playing

video games up to 15 hours a day. AR 391. He is able to

perform basic household chores such as cooking, cleaning, and

shopping, but does not do these chores because his mother and

girlfriend do them for him. AR 26. His apathy towards

completing even basic tasks extends to his use of the bathroom;

rather than going to the bathroom, he keeps a bucket near his

bed. AR 26.

B. Procedural History

Packer filed claims for both SSDI and SSI on January 28,

2014. His amended alleged onset date was June 1, 2013. 1 AR 115.

The Social Security Administration denied his claims both for

1 Packer initially alleged in his claim for SSDI that his disability onset date was June 1, 2013, while in his claim for SSI, he alleged that he had been disabled on October 9, 2012. AR 212, 214. At his hearing before the ALJ, Parker amended his disability onset date for all claims to June 1, 2013. AR 115. 3 SSDI and SSI on September 11, 2014. AR 155, 158. On September

15, 2014, he requested a hearing before an Administrative Law

Judge (ALJ). AR 161.

The ALJ conducted the hearing on December 29, 2015. AR 43.

The ALJ denied Packer’s claims for SSDI and SSI in a written

decision on March 16, 2016. AR 36. In the decision, the ALJ

applied the five-step analysis required by

(for SSDI claims) and

(for SSI claims). At

step one, the ALJ determined that Packer had not engaged in

substantial gainful activity since his amended alleged onset

date of June 1, 2013. AR 20, 23. At step two, the ALJ

determined that Packer had the following severe impairments:

“diabetes mellitus type II with diabetic neuropathy, obesity,

personality disorder, and anxiety disorder.” AR 23. At step

three, the ALJ determined that Packer did not have any of the

impairments listed in 20 C.F.R., Subpart P, Appendix 1, which

would render him disabled per se. AR 25. At step four, the ALJ

determined that Packer had a RFC to do “sedentary work as

defined in 20 CFR [§] 404.1567(a) and [§] 416.967(a),” and that

he also:

“[can] lift and carry 10 pounds frequently and 20 pounds occasionally[;] 4 cannot climb ladders[,] ropes[,] and scaffolds[;]

can occasionally climb ramps and stairs, balance, stoop, crouch, and crawl[; and]

may only have brief and superficial interaction with the general public.” AR 27.

The ALJ determined that, in light of this RFC, Packer could not

return to his past relevant work. AR 34. At step five, after

considering the opinion of a vocational expert, the ALJ

determined that Packer could work in a number of other jobs that

existed in the national economy, including, “hand package

inspector,” “price marker,” and “electric assembler.” AR 35.

The ALJ found that Packer was not disabled and denied his claims

for both SSDI and SSI. AR 36.

Packer petitioned the Appeals Council to review the ALJ’s

decision, but the Appeals Council denied his request for review.

AR 1. Packer filed a complaint for judicial review under

(g) and

(c)(3) on June 26, 2017.

Doc. 1.

II. STANDARD OF REVIEW

I am authorized under

(g) to review the

pleadings submitted by the parties and the administrative record 5 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,

6

. The ALJ, and not the court, must resolve

conflicts in the evidence.

III. ANALYSIS

Packer moves to reverse the decision of the ALJ because the

ALJ determined that his residual functional capacity (RFC) was

greater than the evidence showed and incorrectly found that he

could still perform some work at step five. Doc. 9 at 4, 11,

13.

A. Residual Functional Capacity

Packer argues that the ALJ’s RFC finding was not supported

by substantial evidence because it failed to take into account

both Packer’s personality disorder (when determining his mental

RFC) and his limited use of his hands (when determining his

physical RFC). Doc. 9 at 4, 11.

1. Mental RFC: Personality Disorder

Packer argues that the doctors who evaluated him all formed

the uncontroverted expert opinion that he has a personality

disorder that renders him unable to get along with fellow

employees, and that the ALJ erred by omitting this limitation

from his RFC. Doc. 9 at 8-9.

7 An ALJ is a lay person when it comes to medical evidence,

and therefore she “cannot ignore medical evidence or substitute

[her] own views for uncontroverted medical opinion.” Nguyen,

(citing Rose v. Shalala,

(1st Cir.

1994)). Where medical experts state that a claimant has a

particular limitation, an ALJ must accept that expert opinion

unless there is another expert opinion that contradicts it.

Several doctors evaluated Packer’s mental health over the

course of his initial application for SSDI and SSI benefits. In

February 2014, Dr. Stephanie Griffin examined Packer to

determine whether he was disabled under the New Hampshire

Department of Health and Human Services guidelines. AR 329.

She noted that he has been fired from multiple jobs because he

argued with management, but was polite and cooperative when she

met with him. AR 330-331. Dr. Griffin’s only diagnosis for

Packer was “major depressive disorder.” AR 333. Dr. Griffin

also opined that Packer “does not appear capable of adhering to

a work schedule or maintaining appropriate interactions with

supervisors/co-workers at this time . . . [but] does appear

generally capable of making adequate work-related decisions.”

AR 333. She did not explain how Packer’s depression led to his

8 inability to get along with others.

In August 2014, Dr. Thomas Burns examined Packer in order

to complete a Mental Health Evaluation Report for the New

Hampshire Social Security Disability Determination Service. AR

384. Dr. Burns noted that Packer was of average intelligence,

“capable of taking care of his personal needs,” “able to

communicate and interact with people around him adequately for

most purposes,” “able to concentrate and focus his energies

effectively enough to complete any tasks he chooses to

undertake,” but had a “long history of creating conflict between

himself [and] coworkers,” and was “quietly provocative [and]

negative.” AR 382, 384-385. Ultimately, Dr. Burns diagnosed

Packer with “Personality Disorder with Antisocial and

Narcissistic Features.” AR 385.

In September 2014, Dr. Edward Martin reviewed Packer’s

medical records in order to complete a Mental Residual

Functional Capacity Assessment. AR 134-136. He noted that

Packer’s only mental impairments are moderate limits to his

“ability to work in coordination with or in proximity to others

without being distracted by them” and his “ability to interact

appropriately with the general public.” AR 135. Dr. Martin

9 noted that Packer claimed that he had poor memory and

concentration as well, but that these claims were not credible.

AR 135. Dr. Martin also noted that Packer “is able to accept

simple instructions and to respond appropriately to non-

confrontational supervisory criticism and to changes in the work

situation.” AR 136.

In November 2015, Dr. Wojcik examined Packer, and completed

a report and a “Mental Residual Functional Capacity

Questionnaire.” AR 518, 523. The questionnaire was a check-box

form, in which Dr. Wojcik stated Packer had “major depressive

disorder,” “panic disorder,” and “melancholic features,” and

checked off numerous boxes indicating that Packer had various

symptoms of these diagnoses. AR 518-519. Dr. Wojcik also

described Packer as “socially withdrawn” and of a “low IQ,” but

provided little to no explanation for these diagnoses. AR 521.

Dr. Wojcik also completed a report based on a two-hour

interview with Packer and a review of his previous medical

records. AR 518, 523. In the report, Dr. Wojcik diagnosed

Packer with depression, panic disorder, internet gaming

disorder, and cannabis use disorder (though that disorder is

described as “in remission”). AR 528. Dr. Wojcik also noted

10 that Packer had a “personality disorder,” due to his “avoidance

of social activities, his having little interest in having

sexual experiences with his girlfriend, his lack of close

friends, and his flat affect.” AR 528.

The ALJ’s mental RFC determination is supported by

substantial evidence because it is the result of the ALJ’s

weighing of the various medical experts’ opinions. While Dr.

Burns, Dr. Griffin, and Dr. Wojcik all opined that Packer would

have difficulty getting along with others in the workplace,

their opinions did not conclusively establish that he had a

mental disorder that would prevent him from working with others.

Furthermore, Dr. Burns, who examined Packer directly (and did

not merely review his medical records), found that Packer was

“able to communicate and interact with people around him

adequately” and was “able to concentrate and focus his energies

effectively enough to complete any tasks he chooses to

undertake.” AR 384. Moreover, Dr. Martin noted that Packer was

only moderately limited in his “ability to work in coordination

with or in proximity to others” and his “ability to interact

appropriately with the general public.” AR 135. Therefore, the

ALJ’s RFC, which stated that Packer “may only have brief and

11 superficial interaction with the general public,” was supported

by the opinion of multiple experts. AR 27.

Moreover, the ALJ included the same limitations from the

RFC in the hypothetical posed to the vocational expert. AR 118.

The ALJ stated that the hypothetical individual “can ask simple

questions and request assistance . . . accept simple

instructions, and respond appropriately to non-confrontational

supervisory criticism . . . [and] should have a somewhat

isolated workspace in order to avoid being distracted by

coworkers and the general public.” AR 118. Despite these

limitations, the vocational expert stated there were still jobs

in the national economy that the hypothetical claimant could do. 2

AR 118-119.

2. Physical RFC: Limited use of his Hands

Packer claims that the ALJ erred by rejecting the opinion

of his “treating source,” Dr. Khosro Frahad, without good

reason. Doc. 9 at 11. The Commissioner agrees that Dr. Farhad

2 When the ALJ further modified the hypothetical to require a work environment of “total isolation,” there were no jobs that the hypothetical claimant could perform. AR 120. But, as stated above, Packer’s RFC did not require total isolation, and therefore, this more restricted hypothetical does not apply to him. 12 is Packer’s treating source, but argues that the ALJ properly

considered and rejected Dr. Farhad’s opinion because it was not

supported by other substantial evidence in the record. Doc. 18-

1 at 17.

An ALJ must give a “treating source’s” opinion “controlling

weight” if that opinion is well-supported and consistent with

substantial evidence.

(c)(2); see Foley v.

Astrue, No. 09-10864,

, *8 (D. Mass. June 17,

2010). Even if a treating source’s opinion does not satisfy

these requirements, “it may be ‘entitled to deference.’”

Douglas v. Colvin,

(quoting SSR 96–2p,

, at *4 (July 2, 1996)). Further, if the ALJ rejects the

opinion of a treating source, the ALJ must give “good reasons”

for his determination, which must be “both specific and

supportable.” Jenness v. Colvin,

(citations

omitted). If, on the other hand, it is not possible to

“determine whether the medical opinion evidence was considered

[by the ALJ] and implicitly discredited or instead was simply

overlooked,” I must remand. Kenerson v. Astrue,

(internal quotations omitted). As long as the ALJ satisfies

this standard, I will uphold his decision to discount a treating

13 source’s opinion. Costa v. Astrue,

(D.

Mass. 2008).

The record contains evidence of two examinations by Dr.

Farhad, in November 2014 and June 2015. In November 2014, Dr.

Farhad examined Packer and diagnosed him with Polyneuropathy.

AR 505, 507. Symptoms of his polyneuropathy included an

“intermittent burning sensation in his feet” and “chronic lower

back pain.” AR 505.

In June 2015, Dr. Farhad examined Packer again, and filled

out a check-box form entitled “Medical Source Statement of

Ability to do Work-Related Activities.” AR 395. Dr. Farhad

stated that Packer could only occasionally lift “less than 10

pounds,” stand “less than 2 hours in an 8-hour workday,” and had

limited ability to use his hands for “reaching,” “handling,”

“fingering,” and “feeling.” AR 395, 397.

The record also contains evaluations of Packer’s physical

capabilities by other physicians. Dr. David Lunianski, Packer’s

primary care physician, examined Packer both in May 2014 and

June 2015. AR 362, 475. In the 2014 evaluation, Dr. Lunianski

noted that Packer was “extremely overw[eigh]t,” had “lumbar back

pain” that was “dull and non-radiating,” and did not have

14 numbness, tingling, or weakness in his lower extremities or

feet. AR 362. Notably, Dr. Lunianski noted that Packer could

“occasionally lift and/or carry [up to] 20 pounds.” AR 475.

In the 2015 evaluation, Dr. Lunianski completed the same

check-box form that Dr. Farhad had completed, entitled “Medical

Source Statement of Ability to do Work-Related Activities.” AR

475. He stated that Packer could occasionally lift 20 pounds,

stand or walk for at least two hours in an eight hour work day,

has an unlimited ability to use his hands for handling or

fingering, and a limited ability to use them for reaching and

feeling. AR 475, 477. Dr. Lunianski added several written

noted to the check-box form, including one stating, “Packer

smokes excessively and is not in good condition. He gets short

of breath when walking and has difficulty standing for any

per[iod] of time due to foot, leg, [and] back pain.” AR 475.

In July 2014, Dr. Burton Nault reviewed Packer’s medical

records in order to complete a Physical Residual Functional

Capacity Assessment. AR 132-134. He noted that Packer could

occasionally lift twenty pounds, stand or walk for up to two

hours per day, occasionally climb ramps or stairs, balance, bend

over, kneel, crouch, or crawl, and never climb ladders. AR 132-

15 33. These limitations were due to Packer’s obesity and

diabetes. AR 134.

In September 2015, Dr. Robert Allister examined Packer and

found that he had “carpal tunnel syndrome,” “foot and leg pain,”

but “normal” “muscle strength and tone.” AR 410-11.

The ALJ evaluated these various medical opinions, and

stated that Packer had an RFC in between sedentary work and

light work. AR 27. See

(a)&(b). The ALJ

stated Packer could do “sedentary work” – a job requiring

“lifting no more than 10 pounds at a time and occasionally

lifting or carrying [light objects] and small tools” and

involving occasional walking and standing, see

– but he

could also “carry 10 pounds frequently and 20 pounds

occasionally,” never climb ladders, ropes, or scaffolds, and

“occasionally climb ramps and stairs, balance, stoop, crouch,

[or] crawl.” AR 27.

In reaching this conclusion, the ALJ obviously accepted

some of Dr. Farhad’s opinion and included some physical

limitations, but rejected Dr. Farhad’s finding that Packer could

not use his hands. AR 33. The ALJ reached this conclusion for

multiple reasons. First, the ALJ stated, “With respect to the

16 claimant’s allegations of neuropathic pain and sensory loss

affecting the bilateral hands, I find no objective evidence to

support these allegations.” AR 29. She noted, “neurological

records do not document any evidence of muscle weakness or

reduced grip strength in the claimant’s bilateral hands.”

Furthermore, she specifically credited Dr. Lunianski’s opinion

“that [Packer] can lift up to 20 pounds occasionally, stand and

walk at least 2 hours in an 8-hour workday, and has no

restriction on sitting.” AR 33. As shown above, Dr.

Lunianski’s opinion that Packer could do some minimal lifting,

carrying, and walking is consistent with the opinions of Dr.

Nault and Dr. Allister, while no other physician, nor the

medical records, support Dr. Farhad’s opinion. This is

sufficient to support the ALJ’s RFC determination. 3 See

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

, 3

3 The ALJ also noted that Packer’s activities of daily life – most notably, his excessive video game playing – support a finding that he has no issues with manual dexterity. Packer takes issue with this reasoning because he claims the ALJ did not have any evidence of the type of video games he played, and whether they actually required manual dexterity. Even assuming that the ALJ should not have considered Packer’s activities of daily life, there is sufficient other evidence in support of the ALJ’s physical RFC determination.

17 (1st Cir. 1987) (ALJ can discount the opinion of a doctor if it

is inconsistent with other evidence in the record).

B. Vocational Expert Opinion (Step Five)

Packer argues that the vocational expert’s opinion was

invalid because the jobs that the vocational expert testified

Packer could do were classified as “light” in the Dictionary of

Occupational Titles (DOT), while his RFC explicitly restricted

him to “sedentary” work. Doc. 9 at 13.

Generally, an ALJ can rely on the opinion of a vocational

expert to determine whether a claimant is disabled if the

vocational expert’s opinion is consistent with the DOT. 4 SSR 00-

4p,

, at *2 (Dec. 4, 2000); see Sanchez v.

Colvin,

(D. Mass. 2015); Szumylo v.

Astrue,

(D. Mass. 2011).

Here, the ALJ determined that Packer’s RFC allowed him to

do “sedentary work . . . except he can lift and carry 10 pounds

frequently and 20 pounds occasionally[,] . . . cannot climb

ladders[,] ropes[,] and scaffolds[,] . . . can occasionally

climb ramps and stairs, balance, stoop, crouch, and crawl[, and]

4 If the opinion is inconsistent with the DOT, the ALJ must give other reasons for relying on the vocational expert’s opinion.

18 may only have brief and superficial interaction with the general

public.” AR 27.

The hypothetical that the ALJ posed to the vocational

expert described an individual who could,

[lift] 20 pounds occasionally, 10 pounds frequently, standing and walking up to two hours per day, sitting for six [hours], occasional stairs and ramps, occasional balance, stoop, kneel, crouch, and crawl, no ladders, ropes or scaffolds. . . can ask simple questions and request assistance, he is able to accept simple instructions, and respond appropriately to a non-confrontational supervisory criticism[, and] [h]e should have a somewhat isolated workspace in order to avoid being distracted by coworkers and the general public.

AR 116-118.

In response to this hypothetical, the vocational expert

stated that Packer could work as a “hand package inspector,”

“price marker,” and “electric assembler.” AR 35. The DOT

classifies all of these jobs as “light,” which is one step more

strenuous than the “sedentary” category of jobs. See

(“Physical exertion requirements”).

Packer argues that the vocational expert’s testimony that

the hypothetical claimant with a “sedentary” RFC could do these

three jobs is inconsistent with the DOT, which classifies these

jobs as “light.”

19 If Packer’s RFC was merely for “sedentary” work, and if the

vocational expert had testified that the hypothetical claimant

could perform “light” work, with no modification, then I would

agree. But, this is not the case. As shown above, Packer’s RFC

allowed him to do “sedentary” work and to carry 10 pounds

frequently and 20 pounds occasionally, walk up stairs and ramps,

and balance, stoop, kneel, crouch, and crawl. AR 27.

Therefore, his RFC was somewhere in between complete “sedentary”

work and “light” work. See Blankenship v. Comm’r of Social

Sec.,

(6th Cir. 2015) (permitting an RFC

determination between “sedentary” and “light” work, and

rejecting an “either/or dichotomy between light work and

sedentary work”).

Moreover, the vocational expert did not merely list “light”

jobs in his opinion. The vocational expert noted that not every

single job in each category requires “light” exertion. AR 118.

He then reduced the number of jobs that the hypothetical

claimant could perform in each category, to correspond with the

hypothetical claimant’s ability.

The vocational expert

thus stated that the hypothetical claimant could only perform 70

percent of the jobs available as a hand package inspector, 50

20 percent of the jobs available as a price marker, and 70 percent

of the jobs as an electrical assembler. See Fenton v. Apfel,

(8th Cir. 1998) (affirming the ALJ’s reliance

on a vocational expert who testified that a claimant whose RFC

was in between sedentary and light work could perform 10 percent

of the light unskilled jobs). Even after these reductions,

there was still a significant number of jobs in the national

economy that the hypothetical claimant could do. Therefore, the

vocational expert’s testimony was consistent with the DOT, and

so I affirm the ALJ’s decision.

IV. CONCLUSION

For the aforementioned reasons, I grant the Acting

Commissioner’s motion to affirm, Doc. 18, and deny Packer’s

motion to reverse, Doc. 9. The clerk is directed to enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 30, 2018

cc: Alexandra M. Jackson, Esq. 21 Karen B. Fitzmaurice, Esq. Robert J. Rabuck, Esq.

22