UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Edward Mark Sunshine

v. Civil No. 16-cv-446-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security1

O R D E R

Edward Mark Sunshine seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying, in part, his

application for social security disability benefits. Sunshine

moves to reverse the Acting Commissioner’s decision that he was

no longer disabled as of October 4, 2013, contending that the

Administrative Law Judge (“ALJ”) erred in his assessment of

Sunshine’s residual functional capacity by improperly evaluating

and weighing the medical evidence and not crediting Sunshine’s

subjective complaints. He also argues that the ALJ erred by

relying on the vocational expert’s response to hypotheticals

that did not match his residual functional capacity assessment.

For the reasons that follow, the decision of the Acting

Commissioner is affirmed.

1 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). STANDARD OF REVIEW

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “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); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin,

(1st Cir. 2016).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

.

The claimant bears the burden through the first four steps of

proving that his impairments preclude his from working.2 Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

step, the Acting Commissioner has the burden of showing that

jobs exist which the claimant can do.

“If the claimant is found disabled at any point in the

process, the ALJ must also determine if his disability continues

2 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and his ability to do past relevant work.

(a).

2 through the date of the decision.” Nardolillo v. Astrue, No. CA

09-603 S,

, at *3 (D.R.I. Mar. 29, 2011), report

and recommendation adopted sub nom. Nardilillo v. Astrue, No. CA

09-603 S,

(D.R.I. Apr. 21, 2011) (internal

quotation marks, citation, and alterations omitted). Relevant

to this case, to terminate benefits after a disability has been

found, substantial evidence must demonstrate that there has been

medical improvement to the point that the claimant is able to

engage in substantial activity. See, e.g., Shirzay v. Astrue,

No. CIV.A. 10-11661-JLT,

, at *5 (D. Mass. Jan.

19, 2012), report and recommendation adopted, No. CIV.A. 10-

11661-JLT,

(D. Mass. Feb. 6, 2012). Medical

improvement is defined as “any decrease in the medical severity

of [an] impairment” determined by “changes (improvement) in the

symptoms, signs and/or laboratory findings associated with [the]

impairment.”

(b)(1).

BACKGROUND

On August 26, 2013, Edward Sunshine applied for social

security disability benefits, claiming a disability that began

on July 25, 2012, when he was in a motorcycle accident.

Sunshine alleged that he was disabled because of a concussion,

vertigo, left arm fractures, right leg fracture, blurred vision,

loss of memory, confusion, migraine headaches, loss of feeling

3 and coordination in his left hand and a limp. Sunshine was 49

years old at the time of his application. He had previously

worked as a scientist, carpenter, roofer, small business owner,

hot dog vendor, and “house flipper.”

After his accident, Sunshine spent three days in the

hospital recovering from his injuries. He fractured several

bones and underwent surgery. In the months following the

accident, Sunshine sought treatment for vertigo and headaches,

as well as for the various physical injuries he sustained during

the accident. Sunshine continued to seek treatment for his

ailments at least through March 2015.

On May 14, 2015, a hearing before an ALJ was held on

Sunshine’s application for benefits. Sunshine was represented

by an attorney and testified at the hearing.

On June 19, 2015, the ALJ issued a partially favorable

decision. The ALJ found Sunshine had not engaged in substantial

gainful activity from his July 25, 2012 alleged onset date

through the decision date. At Step Two, the ALJ found Sunshine

had the following “severe” impairments after the alleged onset

date, significantly limiting his ability to do basic work-

related activities: “status-post surgical repair of left

olecranon, radial, and 5th metacarpal fractures; status-post

right patellar fracture and surgical repair of right thigh

4 laceration; post-concussion syndrome with vestibulopathy; and

obesity.” At Step Three, the ALJ found Sunshine had no

impairments that met or equaled any of the listed impairments at

20 C.F.R. Part 404, Subpart P, Appendix 1 at any time from the

alleged onset date through the decision date. The ALJ then

found that Sunshine had the following residual functional

capacity (“RFC”) from the July 25, 2012 alleged onset date

through October 3, 2013:

[T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he could never crawl or climb ladders, ropes or scaffolds; could only occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; could only occasionally perform foot control operations; could only occasionally reach and never overhead reach with the non-dominant left upper extremity; could only occasionally engage in handling and fingering with the non-dominant left upper extremity; needed to avoid exposure to extreme cold, moving machinery, and unprotected heights; would have missed more than 3 days of work a month; and would have been off-task up to 20% of the workday.

The ALJ found that, for the period from July 25, 2012 through

October 3, 2013, Sunshine could not do any past relevant work

and that no jobs existed in significant numbers that he could do

with the assessed RFC. The ALJ thus concluded Sunshine was

disabled from July 25, 2012, through October 3, 2013.

The ALJ determined that as of October 4, 2013, medical

improvement related to Sunshine’s ability to work occurred. For

5 the period from October 4, 2013, through the June 19, 2015

decision date, the ALJ assessed the following RFC:

[T]he claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he can never crawl or climb ladders, ropes, or scaffolds; can only occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; can only occasionally perform foot control operations with the right lower extremity; can frequently reach and occasionally overhead reach with the non-dominant left upper extremity; can frequently engage in handling and fingering with the non-dominant left upper extremity; must avoid exposure to extreme cold, moving machinery on the work floor, unprotected heights, and very loud noises; and must avoid exposure to fluorescent lights or be permitted to wear sunglasses in the workplace.

The ALJ then found that Sunshine could do past relevant work as

a small business owner and mail order clerk.3 The ALJ also found

in the alternative that Sunshine could do other jobs existing in

significant numbers in the economy.

Accordingly, the ALJ found Sunshine was not disabled

starting October 4, 2013, through the June 19, 2015 decision

date. The Appeals Council denied Sunshine’s request for review,

making the ALJ’s decision the Acting Commissioner’s final

decision.

3 In the Joint Statement of Material Facts, mail order clerk is not listed as one of Sunshine’s previous jobs. The parties do not make any reference to this inconsistency and it is not relevant to the court’s analysis.

6 DISCUSSION

Sunshine contends that the ALJ erred in his assessment of

Sunshine’s residual functional capacity as of October 4, 2013,

by ignoring and/or improperly discounting his treating

physician’s opinion and by disregarding Sunshine’s own testimony

as to his symptoms. He also argues that the ALJ erred at Step

Five when he found that Sunshine could do jobs existing in

significant numbers in the economy.

I. RFC Assessment as of October 4, 2013

A claimant’s RFC is “the most [the claimant] can still do

despite [his] limitations.”

(a)(1). The

ALJ is responsible for determining a claimant’s RFC based on all

relevant evidence in the record. Id.; see Dimambro v. US Soc.

Sec. Admin., Acting Comm’r, No. 16-cv-486-PB,

, at

*4 (D.N.H. Jan. 5, 2018). In making that determination, the ALJ

is responsible for resolving any conflicts in the evidence. See

Gonzalez Garcia v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). The ALJ is further required to evaluate “every

medical opinion” that a claimant submits, “[r]egardless of its

source.”

(c).

7 The ALJ determined that Sunshine’s RFC improved beginning

on October 4, 2013.4 In making that determination, the ALJ gave

consideration to Sunshine’s own testimony and his October 3

function report. For example, the ALJ noted that although

Sunshine testified that he continued to have “significant

problems with his left upper extremity and right lower

extremity,” he had not seen a physician or sought any treatment

for those injuries at all after 2013. The ALJ also noted that

Sunshine’s physical therapy notes from 2013 stated that he had

greater strength and functional capacity than he described at

the hearing and that despite his claims of extreme pain in those

areas, he had not been prescribed any pain medications other

than medical marijuana, which was prescribed for other reasons.

The ALJ further noted that Sunshine was offered another course

of physical therapy for his physical ailments in March 2015, but

he declined.

The ALJ also discussed Sunshine’s testimony concerning his

severe headaches, noting that his “treatment and demonstrated

activities are not consistent” with his complaints. The ALJ

noted that Sunshine had only seen his treating neurologist, Dr.

4 The date of improvement corresponds to a function report Sunshine completed on October 3, 2013 in which the ALJ stated that Sunshine “reported excellent activities of daily living.” Admin. Rec. at 28.

8 Anthony Knox, three times since mid-2013 (in March 2014, July

2014, and March 2015), and that his headaches had been most

recently characterized as simple muscle tension headaches and

not migraines. The ALJ also referenced that Dr. Knox had

prescribed Lopressor as a prophylactic headache medication in

March 2014, but that Sunshine discontinued the medication and

had not sought further treatment, despite it being offered to

him.

In addition to Sunshine’s lack of treatment, the ALJ also

discussed how Sunshine’s “alleged severity of [his] impairments

are also inconsistent with his ability to maintain a wide

variety of activities of daily living, indicative of significant

functional capacity.” Admin. Rec. at 32. For example, the ALJ

cited Sunshine’s October 3, 2013 function report, where Sunshine

stated that he can perform self-care tasks such as dressing,

bathing, grooming, and can adequately manage household chores,

doing laundry, going grocery shopping, driving, and caring for

his dog. Sunshine also testified at the hearing that he hand-

washes his dishes, prepares simple meals, and goes for walks

during the day and sometimes at night to get exercise.

The ALJ further discussed evidence in the record regarding

Sunshine’s work activity. He noted Sunshine’s testimony that he

had purchased a home in late-2013 in order to engage in the

9 business of “flipping” houses, and that Sunshine had reported in

March 2014 that he had made several efforts to return to work as

a painter and doing construction tasks. Although Sunshine

stated that he lacked the “stamina to do the work,” the ALJ

found that Sunshine’s attempts to do such work undercut

Sunshine’s testimony concerning his allegedly severe

limitations. Sunshine also never attempted a lighter job that

did not entail such strenuous activity.

In addition to Sunshine’s own testimony, the ALJ supported

his RFC assessment with medical opinion evidence. The ALJ gave

great weight to the opinion of Dr. Louis Rosenthall, a state

agency physician, who did not examine Sunshine but reviewed his

medical records. Dr. Rosenthall opined that Sunshine could do

light work with certain limitations as of October 2013, and the

ALJ noted that those limitations were consistent with Sunshine’s

continued complaints of dizziness and with Sunshine’s

improvement and lack of recent treatment relating to his

musculoskeletal injuries. The ALJ also discussed the opinion of

Dr. Stefanie Griffin, a state agency psychologist, who examined

Sunshine in December 2013.5 Dr. Griffin’s exam “revealed mostly

average cognitive functioning,” which did not support Sunshine’s

claimed limitations. Dr. Griffin opined that based on her exam,

5 The ALJ inadvertently referred to Dr. Griffin as Dr. Green.

10 Sunshine was capable of adhering to a work schedule and making

basic work-related decisions. In addition, the ALJ discussed

the January 2014 opinion of the state agency psychologist, Dr.

Laura Landerman, who reviewed Sunshine’s records and opined that

he had no medically determinable mental impairments.

Sunshine does not challenge the ALJ’s reliance on the

opinion evidence of Drs. Rosenthall, Griffin, or Landerman. He

claims, however, that the ALJ’s RFC assessment is not supported

by substantial evidence because it ignores the opinion of Dr.

Knox, Sunshine’s treating neurologist, and disregards his own

testimony.

A. Treating Physician’s Opinion

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source’s specialty, and other factors that may be brought to the

ALJ’s attention. § 404.1527(c). A treating medical source’s

opinion about the claimant’s impairment will be given

controlling weight if it “is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [the]

case record.” § 404.1527(c)(2). An ALJ must give “good

reasons” for the weight given to a treating source’s medical

11 opinion. § 404.1527(c)(2). “Those reasons must offer a

rationale that could be accepted by a reasonable mind.”

Dimambro,

, at *10. If the ALJ satisfies that

standard, the court will uphold the decision to discount a

treating source’s opinion.

Sunshine notes that the ALJ found that Sunshine had the

same severe impairments before and after October 4, 2013, but

that the ALJ concluded that the medical record showed an

increase in Sunshine’s residual functional capacity as of that

date. Sunshine contends that in making this determination, the

ALJ “largely ignored and/or improperly discounted” the medical

records of Sunshine’s treating neurologist, Dr. Knox. He cites

several of Dr. Knox’s medical records, including (1) “Visit

Notes” from Dr. Knox from various points in 2013 and 2014 and

(2) Dr. Knox’s February 25, 2014 “Treating Source Statement –

RFC.” Although Sunshine concedes that the ALJ explained his

reasoning for discounting Dr. Knox’s opinions concerning

Sunshine’s limitations as of October 4, 2013, he contends that

the ALJ’s reasoning is merely “conjecture” and not supported by

the evidence.

In assessing Sunshine’s residual functional capacity, the

ALJ considered Dr. Knox’s descriptions of Sunshine’s “extreme

work-related limitations” in his Treating Source Statement. The

12 ALJ gave Dr. Knox’s opinions little weight for several reasons.

First, the ALJ referred to Sunshine’s own testimony and his 2013

Function Report, discussed above, in which he discussed his

activities of daily living and his attempts to return to work.

The ALJ found that Sunshine’s own descriptions were at odds with

Dr. Knox’s opinion that Sunshine was limited to “less than

sedentary work.” Such a basis supports a finding that the ALJ

had “good reasons” to discount a treating physician’s opinion.

See, e.g.,

(noting ALJ’s discounting of treating

physician’s opinion because it was inconsistent with evidence of

claimant’s “ongoing levels of activity” was a “good reason” for

assigning it less than controlling weight) (citing cases)).

Second, the ALJ discussed Sunshine’s lack of treatment and

need for prescription pain medication post-October 3, 2013,

which the ALJ determined did not support the significant

limitations set forth in Dr. Knox’s Treating Source Statement.

Such evidence can further be considered “good reasons” for

giving little weight to a treating physician’s activities. See,

e.g., Kane v. Astrue, No. CIV. 08-271-B-W,

, at *3

(D. Me. Mar. 31, 2009), report and recommendation adopted, No.

CIV 08-271-B-W,

(D. Me. Apr. 21, 2009) (noting

that ALJ properly gave treating physician’s opinion that

claimant was severely limited little weight in light of the

13 “claimant’s minimal treatment history [and] his lack of need for

prescription pain medication”).

Finally, the ALJ noted that Dr. Knox’s opinions were at

odds with the three state agency physicians’ opinions. Although

an ALJ is directed generally to give the greatest weight to

medical opinions for treating sources, “the regulations also

presuppose that nontreating, nonexamining sources may override

treating doctor opinions, provided there is support for the

result in the record.” Maynard v. Colvin, No. 14-cv-512-LM,

, at *7 (D.N.H. Oct. 7, 2015) (citing cases); see

also Otero v. Colvin, No. 14-cv-206-PB,

, at *3

(D.N.H. Aug. 27, 2015) (“opinions of treating physicians are not

entitled to greater weight merely because they were treating

physicians.” (internal quotation marks and citation omitted)).

Here, in light of the evidence discussed above, there is

sufficient support in the record to discount Dr. Knox’s opinion

while crediting the non-treating physicians’ opinions. See,

e.g., Otero,

, at *4 (noting ALJ properly gave

treating physician’s opinion little weight in part because non-

examining physician credibly opined that claimant did not have

severe limitations).

Sunshine asserts that the ALJ’s rationale as to why he gave

these opinions little weight after giving Dr. Knox’s pre-October

14 4, 2013 opinions great weight “is erroneous and constitutes

reversible error.” That is simply not the case. As explained

above, while Sunshine labels the ALJ’s reasoning as

“conjecture,” the ALJ addressed Dr. Knox’s conclusions and

reasonably explained why he gave them little weight. A

“reasonable mind” could accept the ALJ’s reasons, and Sunshine

has not shown any error in that analysis.6 See, e.g., Rodriguez

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

(1st Cir.

1987) (per curiam) (affirming ALJ’s decision which gave

claimant’s treating physicians’ opinions little weight because

the court “must affirm the Secretary’s resolution, even if the

record arguably could justify a different conclusion, so long as

it is supported by substantial evidence”).

6 Sunshine criticizes the ALJ’s statement that Dr. Knox’s notes “give the impression that he overly sympathizes with or may have even exaggerated the claimant’s complaints with no consideration to their validity.” Admin. Rec. at 33. This comment, while unhelpful, does not undermine the ALJ’s decision to give Dr. Knox’s post-October 3, 2014 opinions little weight given the otherwise thorough explanation. See, e.g., Hill v. Astrue, No. CIV.A. 12-30018-KPN,

, at *4 (D. Mass. Nov. 15, 2012) (noting that ALJ’s speculation that providers sometimes assist patients in applications for disability benefits out of sympathy “was unnecessary and unhelpful to the determination of disability,” but finding ALJ’s decision to give treating physician’s opinion limited weight was appropriate).

15 B. Subjective Complaints

It is the responsibility of the ALJ to determine whether

the claimant’s description of his symptoms is credible. Irlanda

Ortiz v. Sec’y of Health & Human Servs.,

(1st

Cir. 1991). When reviewing an ALJ’s credibility determination,

the court defers to the ALJ because he “observed the claimant,

evaluated his demeanor, and considered how that testimony fit in

with the rest of the evidence.” Frustaglia v. Sec'y of Health &

Human Servs.,

(1st Cir. 1987). “It is the

ALJ’s prerogative to resolve conflicting evidence, and [the

court] must affirm such a determination, even if the record

could justify a different conclusion so long as it is supported

by substantial evidence.” Vazquez-Rosario v. Barnhart,

(1st Cir. 2005) (internal quotation marks and

citation omitted); see also Rodriguez v. Sec’y of Health & Human

Servs.,

(1st Cir. 1981).

Sunshine argues that the ALJ erred in disregarding his

testimony about his impairments. Contrary to Sunshine’s claim,

however, as discussed above, the ALJ spent significant time

addressing Sunshine’s subjective complaints as of October 4,

2013. Specifically, the ALJ discussed Sunshine’s complaints

regarding his left upper extremity and right lower extremity.

The ALJ determined these complaints were not credible in light

16 of Sunshine’s lack of treatment or medical appointments after

2013, his daily activities, his physical therapy notes that

showed improvement, his lack of pain medication, and the fact

that he declined further physical therapy in 2015. See Section

I, supra. The ALJ also discussed Sunshine’s testimony

concerning his severe headaches, discounting them for similar

reasons. See id. In light of the other evidence in the record,

the ALJ found that Sunshine’s subjective complaints were

“exaggerated,” “generally not credible” and “not persuasive.”

Admin. R. at 29.

The ALJ provided a thorough analysis to support his

conclusion that Sunshine’s statements concerning the severity

and limiting effect of his symptoms as of October 4, 2013 were

not credible. The ALJ’s conclusion falls squarely within his

discretion. See Frustaglia,

(“The credibility

determination by the ALJ, who observed the claimant, evaluated

his demeanor, and considered how that testimony fit in with the

rest of the evidence, is entitled to deference, especially when

supported by specific findings.”); see also Conde v. Colvin, No.

15-cv-246-JD,

, at *5 (D.N.H. Jan. 25, 2016).

17 II. Step Five Determination

At Step Five of the continuing disability analysis, the ALJ

has the burden of showing that jobs exist in the economy which

the claimant can do in light of his RFC assessment. A

vocational expert’s opinions about jobs provides substantial

evidence to support the ALJ’s disability determination if the

opinions are based on hypothetical questions that accurately

reflect the claimant’s limitations. See Perez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1991); Otero,

, at *6.

Sunshine contends that the ALJ erred at Step Five when he

determined that a significant number of jobs exist in the

national economy that Sunshine can do. He raises several

challenges to the vocational expert’s testimony, upon which the

ALJ relied in his Step Five determination. Specifically,

Sunshine asserts: (1) the ALJ failed to resolve the conflicts

between the vocational expert’s testimony and information in the

Dictionary of Occupational Titles (“DOT”); (2) the vocational

expert’s testimony was “confused, confusing, and

contradictory,”; and (3) the vocational expert’s testimony was

based on hypotheticals that did not take into account all the

medical evidence in the record.

18 A. Conflicts with DOT Information

Sunshine points to a number of purported inconsistencies

between the vocational expert’s testimony and information in the

DOT. He notes that the vocational expert identified a specific

number of jobs available and testified about the extent to which

that number would be reduced with additional limitations in

response to certain hypotheticals posed by the ALJ. He also

faults the vocational expert’s testimony regarding light

sensitivity limitations and the impact of accommodations for

Sunshine to wear sunglasses and hats at work on the number of

available jobs. Sunshine contends that the vocational expert’s

testimony on these issues was inconsistent with the information

contained in the DOT.

Sunshine’s arguments are misplaced. Although the ALJ “must

elicit a reasonable explanation for” an unresolved conflict

between a vocational expert’s testimony and the DOT, SSR 00–4p,

, at *2 (S.S.A. 2000), Sunshine has not shown

that a conflict existed here. The DOT does not provide the

number of jobs available for particular occupations or reduce

the number of available jobs based on certain specific

limitations. See Godin v. U.S. Soc. Sec. Admin., Acting Comm’r,

No. 16-cv-461-PB,

, at *6 (D.N.H. Nov. 16, 2017)

(“The DOT . . . just defines jobs. It does not report how many

19 such jobs are available in the economy.” (internal quotation

marks, citations, and alterations omitted)). Therefore, the

vocational expert’s testimony concerning the impact of certain

limitations on the availability of jobs in the national economy

does not conflict with the DOT. See Szumylo v. Astrue,

(D. Mass. 2011) (“Because the Dictionary of

Occupational Titles does not address the subject of sit/stand

options, it is not apparent that the testimony referencing such

an option conflicts with it.” (internal quotation marks,

citation, and alterations omitted)). For these reasons, the ALJ

did not run afoul of his obligations to resolve conflicts

between a vocational expert’s testimony and the DOT.

B. Confusing Testimony

Sunshine also points to the vocational expert’s testimony

concerning the ALJ’s hypotheticals involving a limitation to

avoid bright or fluorescent lights. He asserts that the

vocational expert’s initial response—that the number of

available jobs would be reduced by 50 percent—was “difficult for

her to come by.” Sunshine also points to the vocational

expert’s subsequent testimony concerning an identical

limitation, noting that the vocational expert testified that it

would reduce available jobs by only 25 percent. He asserts that

20 the two answers are inconsistent and confusing, and the ALJ

erred in relying on the latter testimony.

In response to the ALJ’s hypotheticals, the vocational

expert testified about the number of available jobs in the

economy. During the claimant’s attorney’s examination of the

vocational expert, she asked about the effect of an added

limitation of a worker needed to avoid bright or fluorescent

lights. The vocational expert responded that such a limitation

would reduce the available jobs by 50 percent in both New

Hampshire and nationally.

The ALJ subsequently questioned the vocational expert

regarding the effect of a limitation of a worker needing to wear

sunglasses or a visor in the workplace, essentially repeating

with different language the limitation posed by the claimant’s

attorney.7 The vocational expert clarified her answer,

explaining that the limitation would reduce the available jobs

in New Hampshire and nationally by 25 percent. The vocational

expert apologized for the inconsistency, noting that the

questioning had gotten confusing because of the many

7 In the ALJ’s RFC assessment, he included a limitation that Sunshine must “avoid fluorescent lights or wear sunglasses in the workplace.” Admin Rec. at 35. The parties appear to agree that a limitation that a worker avoid bright or fluorescent lights, and a limitation that a worker need to wear sunglasses or a visor, is the same limitation.

21 hypotheticals. She then repeated her testimony three times that

a limitation of a worker needing to avoid bright or fluorescent

lights, or wear sunglasses or a visor in the workplace, would

reduce the jobs available in New Hampshire and nationally by 25

percent.

Although the vocational expert asked for clarification

about the appropriate hypothetical, her testimony was not

inconsistent. The vocational expert explained that she was

confused because of the multiple hypotheticals proposed to her,

but repeatedly stated that a limitation of needing to avoid

fluorescent lights or wear sunglasses in the workplace would

reduce the number of available jobs by 25 percent. The ALJ’s

reliance on such testimony was not improper.8

C. Improper Hypotheticals

Sunshine contends that the ALJ’s hypotheticals proposed to

the vocational expert failed to take into account all medical

8 Sunshine also criticizes the vocational expert for not specifying whether the available jobs constituted full-time or part-time work. He does not argue, and the record does not reflect, that the jobs identified by the vocational expert were part-time jobs. Regardless, because Sunshine’s counsel failed to raise the issue or object at the hearing, he is precluded from raising that issue here. Jarvis v. Berryhill, No. 16-cv- 494-JL,

, at *4 (D.N.H. Jan. 17, 2018).

22 evidence in the record. He asserts that the ALJ excluded a

limitation that the claimant needed to avoid bright and

fluorescent lights, despite medical evidence supporting such a

limitation. He also notes that the vocational expert testified

that no jobs would be available with a limitation that a

claimant could not use his left upper extremity.

The ALJ relied on the vocational expert’s responses to

hypothetical questions that accurately reflected Sunshine’s

limitations as found in the RFC assessment. Although the ALJ

initially proposed a hypothetical that did not contain the

bright lights limitation, he added that limitation to a

subsequent hypothetical, and the vocational expert testified

that it would reduce the available jobs by 25 percent. The ALJ

included that limitation in his RFC, and reduced the available

jobs by 25 percent, citing the vocational expert’s testimony.

See Admin. Rec. at 35.

Although the ALJ did not include a limitation in his

hypotheticals regarding lack of use of a left upper extremity,

that limitation was not included in the ALJ’s RFC assessment.

As discussed, that assessment is supported by substantial

evidence. Therefore, the ALJ committed no error.

23 CONCLUSION

For the foregoing reasons, the claimant’s motion to reverse

and remand (doc. no. 7) is denied. The Acting Commissioner’s

motion to affirm (document no. 10) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 29, 2018

cc: All Counsel of Record

24