UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Veronica E. Moffitt

v. Civil No. 17-cv-280-JL Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Veronica Moffitt moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, the decision of the Acting Commissioner, as announced by

the Administrative Law Judge (“ALJ”) is affirmed.

I. Standard of Review The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

1

(g) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “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 HHS,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 17, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Moffitt first applied for DIB and SSI in May of 2012,

claiming that since August 6, 2010, she had been disabled by a

bad back, depression, anxiety, and carpal tunnel syndrome

(“CTS”). Her applications were denied, and after a hearing in

December of 2013, an ALJ issued an unfavorable decision. The

Appeals Council remanded the case for another hearing, which

Moffitt received in March of 2016. Among other things, the

3 remand order directed the ALJ to obtain evidence from a

vocational expert (“VE”). After Moffitt’s second hearing, at

which a VE testified, the ALJ issued a second unfavorable

decision, which is the subject of this appeal.

At the time of Moffitt’s second unfavorable decision, she

was 42 years old. She had a high school education and had taken

some on-line college courses. She had past work experience as a

machine operator, as a visual inspector/material handler, and as

a cashier. She has been diagnosed with several physical

ailments including the one that is the subject of one of her two

claims in this appeal, carpal tunnel syndrome. For that

condition, Moffitt had surgery on her right wrist in July of

2013. Medical findings related to Moffitt’s CTS have generally

been described as “mild.”

The record includes a single medical opinion concerning

Moffitt’s physical residual functional capacity (“RFC”).1 In

August of 2012, a non-examining state-agency consultant, Dr.

Hugh Fairley, opined that Moffitt had an unlimited capacity for

three of four manipulative activities, reaching, fingering, and

feeling, but was limited in her capacity for handling (gross

manipulation), and he stated that she should “[a]void frequent

1 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1) & 416.945(a)(1).

4 bil[ateral] wrist manipulation.” Administrative Transcript

(hereinafter “Tr.”) 98, 109.

In February of 2014, an occupational therapist, Joan Van

Saun, saw Moffitt and wrote a Functional Capacity Evaluation

(“FCE”). Van Saun’s FCE includes the following statements

relevant to the limitations imposed by Moffitt’s CTS:

Regarding work capacity, it is difficult to predict with accuracy work capacity of a patient with this profile, i.e. primarily subjective pain reports, some inconsistencies on testing . . . .

She does have diagnosed bilateral midcarpal instability and history of carpal tunnel syndrome, so it would be reasonable that she would not be able to perform jobs that required constant handling, such as her job as an assembly person did. . . .

She would probably be capable of work at Sedentary or Sedentary-Light physical demand level job as long as jobs did not require constant use of her hands and as long as work that was required was limited to light handling or fine motor work on up to frequent basis . . . .

Tr. 1333.

As noted, the ALJ heard testimony from a VE at Moffitt’s

second hearing. The ALJ began by asking the VE a hypothetical

question that posited a 42-year-old individual who had taken

some on-line college courses, had Moffitt’s work history, and

had no limitations on reaching, handling, fingering, and

feeling. The VE testified that such a person could perform

Moffitt’s past work: (1) as a machine operator, as she had

performed it, but not as that job is classified in the

5 Dictionary of Occupational Titles; (2) as an inspector, as that

job is generally performed, but not as she had performed it; and

(3) as a cashier. The VE further testified that the person

described in the ALJ’s first hypothetical could perform the jobs

of parts cleaner, retail marker, and laundry worker. Then the

ALJ added an additional limitation to his first hypothetical,

i.e., a requirement that the person “should avoid frequent

bilateral wrist manipulation,” Tr. 58. The VE testified that a

person with that additional limitation could perform the jobs of

order caller, gate attendant, and ticket taker.

After the hearing, the ALJ issued a decision in which he

discussed Moffitt’s CTS at some length, but determined that it

was not a severe impairment, i.e., one that “significantly

limits [her] physical or mental ability to do basic work

activities,”

(c) & 416.920(c).2 He then

assessed Moffitt as having an RFC that included no manipulative

limitations and determined that she was capable of performing

her past work as a machine operator, as an inspector, and as a

cashier. Finally, he determined that if Moffitt needed to avoid

frequent bilateral wrist manipulation, which was the

manipulative limitation in Dr. Fairley’s RFC assessment, she

2 The ALJ did, however, determine that Moffitt had two severe impairments, obesity and degenerative disc disease. 6 would retain the RFC to perform the jobs of order caller, gate

attendant, and ticket taker.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible for

supplemental security income, a person must be aged, blind, or

disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether substantial evidence supports the ALJ’s

determination that Moffitt was not under a disability from

August 6, 2010, through the date of his decision, May 4, 2016.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step sequential evaluation process.

See

(DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform

7 past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted. Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Moffitt’s Claims Moffitt claims that the ALJ erred in assessing her RFC by:

(1) failing to properly consider the combined effect of her

medically determinable impairments; and (2) erroneously

evaluating the testimony she gave regarding her symptoms and

limitations. Neither claim is persuasive

8 1. Combined Effect

The gravamen of Moffitt’s first claim is somewhat difficult

to discern. She begins by invoking a regulation that required

the ALJ to consider the combined effect of all of her physical

impairments, both severe and non-severe. See

& 416.923. But thereafter, she challenges the

underpinnings of the ALJ’s step-two determination that her CTS

was not a severe impairment and also challenges the ALJ’s

formulation of an RFC that included no manipulative limitations.

She concludes her claim by stating that “[t]he ALJ’s error is

not harmless because the ALJ queried the vocational expert only

about the impact of a limitation to ‘occasional bilateral wrist

manipulation’, rather than any more general limitation in her

handling and/or fingering abilities, as the evidence supports.”

Cl.’s Mem. of Law (doc. no. 12-1) 5-6.

As to the gravity of the ALJ’s purported error(s), claimant

is mistaken; any of the errors she charges the ALJ with making

in her first claim, had he made them, would have been harmless.

First of all, if the ALJ erred in determining that Moffitt’s CTS

was not a severe impairment, that error would have been harmless

because the ALJ found two other impairments to be severe,

continued the sequential evaluation past step two, and

considered the effects of her CTS when formulating her RFC. See

Black v. Acting Comm’r, Soc. Sec. Admin., No. 17-cv-350-JD, 2018

, at *5 (D.N.H. Apr. 30, 2018) (citing Garneau v.

Berryhill, No. 16-cv-448-SM,

, at *7 (D.N.H. Oct.

10, 2017)). Second, even if the ALJ erred by failing to include

a manipulative limitation in Moffitt’s RFC, that error would

have been harmless because he posed a hypothetical question to

the VE that incorporated Dr. Fairley’s manipulative limitation,

and the VE testified that there were jobs that could be

performed by a person with that additional limitation.

Finally, Moffitt’s suggestion that the ALJ should have

asked the VE a hypothetical question that included a more

profound limitation on handling and/or fingering than the one he

posited is baseless. That is because the limitation the ALJ

included in his second hypothetical is the most severe

manipulative limitation for which there is adequate support in

the record. It is well established

that since bare medical findings are unintelligible to a lay person in terms of residual functional capacity, the ALJ is not qualified to assess residual functional capacity based on a bare medical record [and] when assessing a claimant’s RFC, the general rule is that an expert is needed to assess the extent of functional loss.

Ouellette v. Berryhill, No. 17-cv-409-SM,

, at *5

(D.N.H. June 19, 2018) (quoting Jabre v. Astrue, No. 11–cv–332–

JL,

, at *8 (D.N.H. Apr. 5, 2012) (citations and

internal punctuation omitted), R. & R. adopted by

(Apr. 9, 2012)). Here, no expert ever opined that

10 Moffitt had a manipulative limitation more severe than the one

the ALJ included in his second hypothetical question to the ALJ.

The only acceptable medical source who provided an opinion

on Moffitt’s physical RFC was Dr. Fairley. To be sure, Joan Van

Saun provided a Functional Capacity Assessment, but she is an

occupational therapist, and under the Social Security

regulations, that does not qualify her as either an acceptable

medical source or as a medical source of any kind. See

(a) & (d); § 416.902(a) & (d). Thus, even if

the manipulative limitations that Van Saun assessed are more

severe than those that Dr. Fairley assessed -- and it is not so

clear that they are -- the ALJ was not permitted to base his RFC

assessment on Van Saun’s FCE because she is not an acceptable

medical source.

In short, because the ALJ continued past step two in the

sequential evaluation process and because the VE testified that

there were jobs that could be performed by a person with the

most severe manipulative limitation for which there is support

in the record from an acceptable medical source, Moffitt’s first

claim provides no valid basis for reversing the ALJ’s decision

and remanding this case.

2. Symptoms and Limitations

Moffitt’s second claim is that when the ALJ assessed her

RFC, he erroneously evaluated her testimony regarding her

11 symptoms and limitations. Specifically, she argues that the

ALJ: (1) disregarded her testimony solely because it was not

substantiated by objective medical evidence; and (2) discounted

her testimony based upon inconsistencies in the statements she

had made to treatment providers at different times. There are

several problems with Moffitt’s claims, but before turning to

them, the court will briefly outline the applicable legal

principles.

Moffitt correctly points out that the Acting Commissioner

of Social Security recently replaced Social Security Ruling

(“SSR”) 96-7p, which focusses on the concept of credibility,

with SSR 16-3p,

(S.S.A. Mar. 16, 2016), which

moves away from the concept of credibility and reframes the

requisite analysis for evaluating a claimant’s statements of

symptoms.

SSR 16-3p begins by stating that under SSA regulations, “an

individual’s statements of symptoms alone are not enough to

establish the existence of a physical or mental impairment or

disability,”

, at *2, and goes on to say that “if

an individual alleges impairment-related symptoms, we must

evaluate those symptoms using a two-step process set forth in

our regulations [i.e.,

& 416.929],”

These are the two steps:

12 First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities . . . .

With regard to the second step, SSR 16-3p provides, in

pertinent part:

[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities . . . .

. . . .

However, we will not disregard an individual’s statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.

Id. at *4-5.

As noted, Moffitt claims that the ALJ erred by disregarding

her statements of symptoms solely because they were not

substantiated by the objective medical evidence. In so doing,

she quotes a passage from the ALJ’s decision in which he

“note[d] several instances ‘in the claimant’s medical records

indicating that her alleged symptoms and limitations are

inconsistent with her activities and medical findings,’” Cl.’s

13 Mem. of Law (doc. no. 12-1) 7 (quoting Tr. 30) (emphasis added).

In other words, the very passage on which Moffitt relies for the

proposition that the ALJ relied solely upon a lack of

substantiation from objective medical evidence to disregard her

statements of symptoms demonstrates that the ALJ also relied

upon a lack of substantiation from information about her

activities to discount those statements. And indeed, SSR 16-3p

identifies a claimant’s “[d]aily activities” as a factor to

consider when evaluating a claimant’s statements about her

symptoms.

, at *7. In all, the first part of

Moffitt’s claim gives the court no reason to reverse the ALJ’s

decision.

The second part of Moffitt’s claim is also unavailing. She

asserts that the ALJ erred by determining that her statements of

symptoms were suspect because they were inconsistent with each

other over the course of time. While SSR 16-3p cautions against

putting too much stock in such inconsistencies in a claimant’s

statements because “[s]ymptoms may vary in their intensity,

persistence, and functional effects, or may worsen or improve

with time,”

, at *8, the ALJ did not do what SSR

16-3p cautions against. The court has carefully read the ALJ’s

decision, and while it makes several references to

inconsistencies, see Tr. 30-33, the ALJ refers to

inconsistencies between Moffitt’s statements and the objective

14 medical evidence and to inconsistencies between her statements

and her activities, but never once does he discount her

statements because they were inconsistent with each other over

the course of time. Accordingly, the second part of Moffitt’s

argument gives the court no reason to reverse the ALJ’s

decision.

To sum up, Moffitt has identified nothing in the ALJ’s

decision that violate the precepts of SSR 16-3p.

IV. Conclusion

Because the ALJ has committed neither a legal nor a factual

error in evaluating Moffitt’s claim, see Manso-Pizarro,

, her motion for an order reversing the Acting

Commissioner’s decision1 is denied, and the Acting Commissioner’s

motion for an order affirming her decision2 is granted. The

clerk of the court shall enter judgment in accordance with this

order and close the case.

SO ORDERED. ___________________________ Joseph N. Laplante United States District Judge

Dated: September 5, 2018

cc: D. Lance Tillinghast, Esq. Terry L. Ollila, AUSA 1 Doc. no. 12.

2 Doc no. 16.

15