UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Katie Lye Rutman

v. Civil No. 17-cv-466-JL Opinion No.

U.S. Social Security Administration, Commissioner

ORDER ON APPEAL

Katie Lye Rutman has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments, Rutman retains the residual functional

capacity (“RFC”) to perform jobs that exist in significant

numbers in the national economy, and thus is not disabled. See

(a). The Appeals Council later denied

Rutman’s request for review, see

§ 404.967, with the result

that the ALJ’s decision became the final decision on her

application, see id. § 404.981. Rutman then appealed the

decision to this court, which has jurisdiction under

(g) (Social Security).

Rutman has moved to reverse the decision. See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(e). After careful

consideration, the court denies Rutman’s motion and grants the

Acting Commissioner’s motion. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,”

that is, “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “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). The court therefore

“must uphold a denial of social security . . . benefits unless

‘the [Acting Commissioner] has committed a legal or factual

error in evaluating a particular claim.’” Manso-Pizarro v.

Sec'y of Health and Human Servs.,

(1st Cir. 1996)

(per curiam) (quoting Sullivan v. Hudson,

(1989)).

2 Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Rutman’s request for disability

and disability insurance benefits. See

.

The ALJ found that Rutman was insured under the Social Security

Act only through March 31, 2014.2 See

(i); 423.

After determining that Rutman had not engaged in substantial

gainful activity between the alleged onset of her disability on

April 1, 2013 and the date last insured, the ALJ analyzed the

severity of her impairments. At this second step, the ALJ

concluded that through the date last insured Rutman had several

severe impairments: residual effects from motor vehicle

accidents; chronic regional pain syndrome of the right upper

extremity; carpal tunnel syndrome; migraine headaches; obesity;

asthma; Major Depressive disorder; and Affective disorder.3

At the third step, the ALJ found that through the date last

insured Rutman’s severe impairments did not meet or “medically

equal” the severity of one of the impairments listed in the

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (doc. no. 11) is incorporated by reference. 2 Admin. R. at 15. 3 Admin. R. at 16.

3 Social Security regulations.4 See

(d),

404.1525, 404.1526. After reviewing the medical evidence of

record, medical opinions, and Rutman’s own statements, the ALJ

concluded that Rutman retained the RFC through the date last

insured to perform light work, see

(b), with

additional limitations:

As for postural limitations, the claimant can stoop, kneel, crouch, and crawl occasionally. In terms of manipulative limitations, the claimant can reach, handle, and finger frequently. She must avoid concentrated exposure to temperature extremes (i.e. extreme heat and extreme cold), wetness, humidity, and irritants such as fumes, odors, dusts, gases, and poorly ventilated areas. The claimant has the ability to carry[] out simple routine tasks, but can no longer remember or carry out detailed instructions. Furthermore, the claimant is limited to a low stress job (defined as only occasional decision-making and occasional changes in work setting), with no more than occasional interaction with the public and co-workers.5

Finding that, even limited in this manner, Rutman was able to

perform jobs that exist in significant numbers in the national

economy through the date last insured, see

,

the ALJ concluded his analysis and found that Rutman was not

disabled within the meaning of the Social Security Act through

the date last insured.

4

5 Admin. R. at 18.

4 Analysis

Rutman primarily challenges the ALJ’s determination that

she retained the RFC to perform light work, with additional

limitations, through the date last insured. Rutman directs the

argument portion of her memorandum entirely towards this step-

four issue, focusing on the consideration of her right upper

extremity limitations.6 But, in conclusion, she asks the court

to remand the case for redetermination of the separate step-

three question of whether she had an impairment or combination

of impairments that meets or medically equals one of the listed

impairments in the Social Security regulations.7 Rutman has not

identified any alleged error in the ALJ’s step-three analysis.

In the portion of that analysis addressing Rutman’s right upper

extremity impairment, the ALJ reasonably explains that Rutman’s

impairment did not fall under listing 1.02 because her testimony

showed she retained the ability to perform fine and gross

movements with her upper extremities effectively.8 As there is

no alleged or obvious error in the step-three analysis, the

6 Doc. no. 7-1 at 3-4. 7 Id. at 2. 8 Admin. R. at 16. The ALJ could consider activities Rutman might perform with her left upper extremity because listing 1.02(B) requires “involvement of one major peripheral joint in each upper extremity . . . resulting in inability to perform fine and gross movements effectively.” See

, Subpart P, App. 1.

5 court focuses on Rutman’s challenge to the ALJ’s RFC

determination.

In her brief arguments against the ALJ’s RFC determination,

Rutman questions the ALJ’s decisions to afford little weight to

both the results of June 2016 functional capacity testing and a

June 2016 opinion submitted by Maria Martin, PA-C.9 First,

Rutman suggests the ALJ erred by awarding “partial weight” to an

assessment based on October 2012 functional capacity testing but

only “little weight” to the assessment based on the 2016

testing.10 The ALJ adequately justified this difference. The

ALJ acknowledged that the 2016 testing showed that Rutman’s

“functional capacities have deteriorated in some aspects such as

in her ability to use her hands and in her lifting ability.”11

But he gave that assessment little weight “because it is well

after the expiration of the date last insured and is from an

unacceptable medical source, who cannot provide a medical

opinion.”12 The 2016 testing occurred a little over two years

after the date Rutman was last insured. The 2012 testing, on

the other hand, took place approximately six months before

9 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 3. 10 Admin. R. at 22-23. 11 Id. at 23. See id. at 1174-81. 12 Id. at 23.

6 Rutman’s alleged disability onset date. The ALJ did not err in

weighing these assessments differently because of the difference

in proximity to the alleged period of disability.

Second, Rutman challenges the low weight given to a June

2016 opinion from her primary care provider, PA-C Martin. PA-C

Martin states in this opinion only that Rutman was under the

care of Goodwin Community Health and that “based on recent

functional capacity test done on June 3rd, she demonstrated

minimal functional activity on her right arm and therefore she

has limited use of her right arm.”13 The ALJ found that this

opinion held “little evidentiary value as it only states that

she has limited use of her right arm” without “objective support

for her opinion” or “treatment notes to collaborate [sic] her

findings.”14 Additionally, the ALJ found that “other opinion

evidence is more persuasive because they provide specific

functional limitations.”15 PA-C Martin’s opinion, while very

brief, does cite the June 2016 functional capacity testing. And

the report on this testing was addressed to PA-C Martin.16 But

the ALJ reasonably found that testing to be of limited relevance

13 Id. at 1182. 14 Id. at 23. 15 Id. 16 Id. at 1175.

7 to Rutman’s alleged period of disability. The opinion does not

offer any other support and only offers an assessment of

Rutman’s limitations as of June 2016, well after the date last

insured. The ALJ did not err in affording PA-C Martin’s opinion

limited weight.

Rutman also makes a broader challenge to the ALJ’s RFC

determination. She argues that “with regard to his findings

addressing [Rutman’s] physical limitations the ALJ assigned

either partial or limited weight to the findings of all of the

medical sources that he addresses in his decision” and that all

of these cited sources “indicated that [Rutman] was limited to

occasional use of her right upper extremity.”17 Rutman suggests

this limitation would be decisive because the vocational expert

at her hearing “testified that there would be no work” available

when “the ALJ included the limitation of occasional use of the

right upper extremity.”18

The record does not support Rutman’s argument. The

vocational expert testified that no work would be available if

an individual with the limitations the ALJ ultimately included

in his RFC determination could also only reach, handle, and

finger occasionally, rather than frequently, with their right

17 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 4. 18 Id.

8 upper extremity.19 As the ALJ accurately noted in his decision,

the 2012 functional capacity assessment reported that Rutman

“has the ability to . . . perform simple and fine grasping

activities frequently, except for a firm grasp with the right

hand only occasionally.”20 The ALJ gave this opinion partial

weight.21 The ALJ also specifically reviewed Rutman’s treatment

records regarding hand and wrist pain, and found that they

supported a finding that she could “handle, feel, and finger on

a frequent basis” through the date last insured.22 The ALJ, as

discussed supra, noted that the 2016 functional testing showed

possible deterioration in Rutman’s ability to use her hands, but

gave this opinion little weight.23 While the record arguably

could support a different conclusion, the ALJ’s decision must be

upheld if it is supported by substantial evidence. The 2012

functional capacity testing and medical treatment records cited

by the ALJ provide substantial evidence to support the

conclusion that Rutman retained the ability to reach, handle,

and finger frequently through the date last insured. The ALJ’s

19 Admin. R. at 57-58. 20 Id. at 22, 1002. 21 Id. at 22-23. 22 Id. at 20-21. 23 Id. at 23.

9 RFC determination thus did not conflict with the testimony of

the vocational expert and is supported by substantial evidence.

The ALJ did not err in giving little weight to functional

capacity testing performed well after the last date Rutman was

insured or to a medical opinion based entirely on this testing.

Nor did the ALJ err in finding that Rutman could reach, handle,

and finger frequently through the date last insured, as

substantial evidence exists to support that conclusion.

Conclusion

For these reasons, the Acting Commissioner’s motion to

affirm24 is GRANTED and Rutman’s motion to reverse and remand the

Acting Commissioner’s decision25 is DENIED. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 1, 2018

cc: Christopher G. Roundy, Esq. Terry L. Ollila, AUSA

24 Doc. no. 9. 25 Doc. no. 7.

10