UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brian Zackowski, Claimant

v. Case No. 17-cv-709-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Brian Zackowski, moves to reverse or vacate the Acting

Commissioner’s decision denying his application for Disability

Insurance Benefits under Title II of the Social Security Act

(the “Act”),

, and Supplemental Security Income

Benefits under Title XVI of the Act,

(c).

The Acting Commissioner objects and moves for an order affirming

her decision.

For the reasons discussed below, claimant’s motion is

denied, and the Acting Commissioner’s motion is granted.

1 Factual Background

I. Procedural History.

In 2012, Zackowski filed an application for Disability

Insurance Benefits, alleging that he had been unable to work

since December 28, 2010, due to a spine injury and depression.

Administrative Record (“Admin. Rec.”) at 155, 159. That

application was denied (Admin. Rec. at 74), and claimant

requested a hearing before an Administrative Law Judge (“ALJ”)

(Admin. Rec. at 87). On October 31, 2013, Zackowski appeared

without counsel before an ALJ, along with a vocational expert,

who considered claimant’s application de novo. Admin. Rec. at

23-71. Two weeks later, the ALJ issued his written decision,

concluding that Zackowski was not disabled, as that term is

defined in the Act, at any time prior to the date of his

decision. Id. at 10-22.

Zackowski sought review of the ALJ’s decision by the

Appeals Council. Admin. Rec. at 9. By notice dated June 24,

2015, the Appeals Council denied Zackowski’s request for review.

Admin. Rec. at 1-4. Accordingly, the ALJ’s denial of

Zackowski’s application for benefits became the final decision

of the Acting Commissioner, subject to judicial review. Id. at

1.

2 Zackowski then filed for federal district court review of

the Commissioner’s decision. See Admin. Rec. at 393-394.

Prior to the court’s review, however, the Commissioner, through

her attorney, assented to Zackowski’s motion to remand the

decision for further proceedings, under

(g). On

June 2, 2016, the Appeals Council vacated the ALJ’s earlier

decision, and remanded the case to the ALJ for further

consideration and evaluation of the treating source opinions in

the record. 1

On July 11, 2017, the ALJ held a second hearing at which

Zackowski, his attorney, and a vocational expert appeared.

Admin. Rec. at 344-384. At the hearing, plaintiff amended his

alleged onset date of disability to February 6, 2012. Admin.

Rec. at 352. On September 15, 2017, the ALJ issued his written

decision, concluding that Zackowski was not disabled, as that

term is defined in the Act, at any time prior to the date of the

decision.

. Zackowski did not file any written

exceptions to the ALJ’s decision with the Appeals Council, and,

the ALJ’s decision thus became the final decision of the

Commissioner.

1 On March 20, 2015, Zackowski filed a separate application for Supplemental Security Income (“SSI”). See Admin. Rec. at 564. That application was consolidated with claimant’s application for Disability Insurance Benefits on remand.

3 Zackowski subsequently filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence. Zackowski then filed a “Motion for Order

Reversing Decision of the Commissioner” (document no. 7). In

response, the Acting Commissioner filed a “Motion for Order

Affirming the Decision of the Commissioner” (document no. 9).

Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 10), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

4 1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). It is something

less than a preponderance of the evidence, so the possibility of

drawing two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being supported

by substantial evidence. Consolo v. Federal Maritime Comm’n.,

(1966). See also Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and DIB benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The

Act places a heavy initial burden on the claimant to establish

the existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health &

Human Services,

(1st Cir. 1991). To satisfy that

5 burden, the claimant must prove, by a preponderance of the

evidence, that his impairment prevents him from performing his

former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

he can perform, in light of his age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his

6 previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that Zackowski was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, the ALJ first determined that

Zackowski had not been engaged in substantial gainful employment

at any time relevant to the decision. Admin. Rec. at 328.

Next, he concluded that Zackowski suffers from the following

severe impairment: “facet disease of the lumbar spine.” Id. at

329. The ALJ also considered Zackowski’s “essential tremor

affecting his left upper extremity” and his adjustment disorder

with depressed mood, and determined that neither impairment had

7 “more than minimal effect on his ability to perform basic work

functions,” and therefore were not severe. Id. at 331-332. The

ALJ then determined that Zackowski’s impairments, regardless of

whether they were considered alone or in combination, did not

meet or medically equal one of the impairments listed in Part

404, Subpart P, Appendix 1. Id. at 332. Zackowski does not

challenge any of those findings.

Next, the ALJ concluded that Zackowski retained the

residual functional capacity (“RFC”) to perform the exertional

demands of light work, as defined in 20 CFR 404.1567(b) and

416.967(b), “except he is limited from standing, walking or

sitting for more than 30 minutes at one time and for more than 4

hours total during an 8-hour work day.” Admin. Rec. at 333. The

ALJ further noted that claimant can “occasionally stoop, crouch,

balance, kneel and climb stairs,” “occasionally push, pull and

work overhead,” and “cannot climb ladders/ropes or scaffolds.”

Id. In light of those restrictions, the ALJ concluded that

claimant was not capable of returning to his prior job. Id. at

335.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying on

the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,

App. 2, and the testimony of the vocational expert at the

8 October 31, 2013, hearing, the ALJ concluded that “there are

jobs that exist in significant numbers that the claimant can

perform.” Admin. Rec. at 336. The ALJ then concluded that

claimant was not “disabled,” as that term is defined in the Act,

through the date of his decision.

Discussion

Claimant challenges the ALJ’s decision, asserting that the

ALJ erred in: (i) evaluating the opinion evidence in the record;

(ii) assessing claimant’s testimony regarding his symptoms and

limitations; and (iii) failing to incorporate all non-exertional

limitations from his RFC findings into the hypothetical

questions posed to the vocational expert.

I. Opinion Evidence of Record

Claimant first argues that the ALJ’s evaluation of the

opinion evidence in the record was erroneous. More

specifically, Zackowski takes issue with the ALJ’s reliance on

the September 27, 2012, assessment of reviewing state agency

consultant Dr. Hugh Fairley, and the January, 2014, opinion of

consultative examiner Dr. Peter Loeser. Instead, says

Zackowski, the ALJ should have relied upon the November, 2015,

opinion of non-examining physician Dr. Jonathan Jaffe, and the

February, 2012, functional capacity assessment of Brent Meserve

9 (which, Zackowski argues, the ALJ was specifically directed to

evaluate upon remand), as well as the opinions of claimant’s

treating physicians, Dr. Robert McLellan and Dr. David Coffey.

A. Opinions of Drs. Fairley and Loeser

Zackowski does not clearly articulate why the ALJ’s

reliance on the opinions of Drs. Fairley and Loeser was

problematic, instead arguing that the ALJ should have relied on

other opinion evidence in the record. With respect to the

opinion of Dr. Fairley, Zackowski does point out that the

opinion was issued approximately five year before the ALJ’s

decision. So, to the extent Zackowski is arguing that the ALJ

should not have relied on Dr. Fairley’s opinion because it was

based on a partial record (and, again, whether Zackowski is, in

fact, making that argument is not clear from his briefing, as he

cites no authority or any record evidence to support that

position), that fact alone would not preclude the ALJ from

relying on Dr. Fairley’s assessment. As the court has

previously stated:

It can indeed be reversible error for an administrative law judge to rely on an RFC opinion of a non-examining consultant when the consultant has not examined the full medical record.” Strout v. Astrue, Civil No. 08– 181–B–W,

, at *8 (D. Me. Jan. 28, 2009) (citing Rose v. Shalala,

(1st Cir. 1994)). However, an ALJ may rely on such an opinion where the medical evidence post-dating the reviewer's assessment does not establish any greater limitations,

10 see

at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly inconsistent” with, the reviewer's assessment. See Torres v. Comm'r of Social Security, Civil No. 04–2309,

, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771,

, at *4 n.5 (5th Cir. 2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered medical records dated after the non-examining source's report).

Ferland v. Astrue, No. 11-CV-123-SM,

, at *4

(D.N.H. Oct. 31, 2011).

Here, the ALJ reviewed the entirety of Zackowski’s medical

records, including records post-dating Dr. Fairley’s 2012

opinion, and determined that Dr. Fairley’s opinion was

“consistent with the claimant’s varied daily activities as

reported in his Function Report and as documented in his various

medical records.” Admin. Rec. at 335. The record supports that

conclusion. See, e.g., Admin. Rec. at 608 (Apr. 7, 2016,

assessment of Dr. McLennan stating, “I see no significant change

in his exam from multiple exams in the past”); id. at 605(July

30, 2015, assessment of Dr. McLennan stating same). And, as the

Acting Commissioner points out, Zackowski points to no evidence

in the record that suggests a sustained worsening of his

11 impairment following Dr. Fairley’s September, 2012, review of

Zackowski’s medical records. Put differently, Zackowski fails

to point to any medical evidence after September, 2012, that

establishes “greater limitations” than those assessed by Dr.

Fairley. Ferland,

, at *4. Accordingly, the ALJ

did not err in relying on Dr. Fairley's report in his RFC

analysis.

With respect to the ALJ’s reliance on Dr. Loeser’s January,

2014, and October, 2015, opinions, Zackowksi asserts that the

ALJ gave the opinions significant weight. However, he does not

appear to argue that the ALJ erred in doing so. Without more,

the court can find no error in the weight given by the ALJ to

the opinions of Dr. Loeser.

B. Opinion of Dr. Jaffe

Zackowski argues that the ALJ erroneously did not address

the November, 2015, opinion of non-examining physician Dr.

Jonathan Jaffe. After reviewing claimant’s medical records, Dr.

Jaffee opined that he was capable of occasionally lifting or

carrying up to 10 pounds; standing or walking up to four hours;

sitting for a total of six hours (in an eight-hour work day);

could never climb ladders, ropes or scaffolds; and had limited

manipulative limitations with respect to reaching and handling.

Thus, the majority of Dr. Jaffe’s opinion is consistent with the

12 ALJ’s RFC, except Jaffe’s lifting limitation is 10 pounds, not

20 pounds.

Zackowski correctly contends that ALJ did not reference Dr.

Jaffe’s opinion in his order. However, the ALJ did expressly

indicate that he carefully considered “all the evidence,” and

“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence

submitted by a party.” N.L.R.B. v. Beverly Enterprises-

Massachusetts, Inc.,

(1st Cir. 1999). Dr. Jaffe

is not one of claimant’s treating physicians. Therefore, the

regulations do not require that the ALJ give “good reasons” for

the weight ascribed to Dr. Jaffe’s opinion.

(“We will always give good reasons in our notice of

determination or decision for the weight we give your treating

source’s medical opinion.”) (emphasis added).

However, even assuming the ALJ erred by failing to address

Dr. Jaffe’s opinion in his order, Zackowski’s argument is

unpersuasive, because he fails to sufficiently demonstrate that

further consideration of Dr. Jaffe’s opinion would likely change

the outcome. As the Commissioner points out, Dr. Jaffe’s

opinion “only bolsters a finding that [claimant] was not

disabled.” Def.’s Mem. In Supp. Of Mot. to Affirm at 7.

13 As discussed, the majority of Dr. Jaffe’s opinion is

consistent with the RFC, with the exception of the lifting and

carrying limitations. And, Zackowski offers no explanation as

to how those lifting and carrying limitations would alter the

vocational analysis, and result in a finding of disability. The

record suggests the opposite: based on Dr. Jaffe’s opinion, the

disability adjudicator/examiner determined that Zackowski was

capable of “sedentary work,” and that: “all potentially

applicable Medical-Vocational Guidelines would direct a finding

of ‘not disabled’ given the individual’s age, education and

RFC.” Admin. Rec. at 431 (emphasis added). In other words,

even if the ALJ had adopted Dr. Jaffe’s RFC in its entirety,

that would not alter or impact the ALJ’s conclusion that

claimant was not disabled. Claimant therefore fails to

demonstrate that remand is warranted on that basis.

C. Meserve Functional Capacity Assessment

Zackowski further argues that the ALJ erred by giving

“limited weight” to the February, 2012, Functional Capacity

Assessment completed by Brent Meserve, which the ALJ was

specifically directed to evaluate upon remand. Claimant

contends that the ALJ’s reasoning ignores the objective testing

that was the basis for Meserve’s assessment, and that the ALJ

14 fails to adequately identify inconsistencies between Meserve’s

assessment and the testing results.

On February 6, 2012, at the requests of claimant’s treating

physician, Dr. Robert McClellan, Brent Meserve performed a

Function Capacity Evaluation of the claimant. Admin. Rec. at

250. Dr. McClennan asked Meserve to evaluate Zackowski’s work

capacity, including his level of physical effort, whether his

reports of pain and disability were reliable, and what physical

demand level should be used for employment planning purposes.

Admin. Rec. at 251. Merserve reported the “presence of near

full levels of physical effort on Mr. Zackowski’s behalf.”

He also reported the “presence of minor inconsistenc[ies] to the

reliability and accuracy of Mr. Zackowski’s reports of pain and

disability,” based on his accuracy with “a few of his physical

tolerance estimates,” as well as his rating of his ability to

perform work tasks (Zackowski rated himself as “sedentary,” “but

actually performed activities during physical testing in the

light to medium range.”)

Meserve concluded, based on the

results of his testing, that Zackowsi could tolerate “light

physical demand level work into the medium range with occasional

lifting floor to knuckle 33 pounds, knuckle to shoulder 28

pounds and shoulder to overhead 33 pounds,” on a part-time

15 basis, four hours per day, five days a week. Admin. Rec. at

252-253.

The ALJ stated the following, concerning Meserve’s

assessment:

I have considered the specific limitations cited in the February 2012 functional capacity assessment. This assessment provides no objective basis for the lifting and stooping limitations opined other than the claimant’s subjective complaints. However, as described above, there is strong evidence in this case from multiple sources to indicate that his complaints are overstated. Further, the limitations assessed in February 2012 are inconsistent with the claimant’s functioning even during testing as where the claimant sat uninterrupted for 26 minutes during testing and for almost two hours during the [four]-hour examination. I also note, incidentally, that the claimant sat for even longer uninterrupted period during his administrative hearing. For these reasons, I have afforded only limited weight to the February 2012 functional capacity opinion.

Admin. Rec. at 334-335 (internal citations omitted).

Claimant’s criticism of Meserve’s assessment is

unpersuasive. The ALJ adequately explained his reasons for

discounting Meserve’s assessment, and the record supports his

findings. See, e.g., Admin Rec. at 311 (Jan. 17, 2014,

examination notes from Dr. Peter Loeser, stating: “The patient

does walk with his torso flexed at the hips to about 20 degrees

when demonstrating his ability to walk, but this was not the

case when the patient departed from the examination room

following the conclusion of the visit,” and “Though the patient

16 states these symptoms are having a significant impact on overall

function, there is insufficient evidence to fully support this

conclusion.”); Admin. Rec. at 598-600 (Apr. 17, 2014,

examination notes from Dr. Vincent Codispoti, stating: “I

suspect a non-organic component based on some positive Waddell’s

signs on exam (overreaction, tenderness).”); Admin. Rec. at 650-

651 (Feb. 18, 2016, examination notes from Dr. Lawrence Rush,

stating: “He has also been diagnosed with what has felt to have

been facet syndrome, although it is hard for me to believe that

this would cause the degree of disability that he is

reporting.”); Admin. Rec. at 672-674 (Jan. 30, 2017, appointment

notes from Dr. Rush from claimant’s visit to “discuss disability

paperwork.” Rush also expressed some reservation regarding

claimant’s disability forms: “This continues to be a very

difficult situation. I am going to refer him to a local pain

management specialist as we really need to get further

information on this gentleman. . . He had also given me

something from the New Hampshire Fish and Game to let him use a

crossbow, but on the form it said permanent[ly] disabled and I

cannot say this.”); Admin. Rec. at 711-714 (Feb. 27, 2017

appointment notes from neurologist Dr. Christopher Martino,

noting inconsistencies in claimant’s examination, and stating:

“Some functional elements on examination with times when the

tremor is present[, and] times when the tremor is not present.

17 There are also times when he does finger-nose with ataxia and

accomplishes finger-nose without ataxia. The variation and

inconsistencies on examination suggest a functional overlay.”)

(emphasis added). Moreover, Meserve’s assessment itself notes

the limitations of its reliability, stating: “It needs to be

remembered that the evaluation occurs over a relatively short

period of time and is a snapshot of the person’s abilities.”

Admin. Rec. at 252.

Second, the ALJ’s RFC limitations were generally consistent

with Meserve’s assessment. Indeed, the ALJ took note of

claimant’s performance during Meserve’s assessment in his own

analysis, stating that the RFC was “consistent with the

claimant’s actual performance on testing in February 2012 when

he lift[ed] in excess of 25 pounds and sat for a total of nearly

[half] of his testing sessions.” Admin. Rec. at 335. For these

reasons, claimant’s arguments concerning the ALJ’s treatment of

the Meserve assessment are unpersuasive.

D. Opinions of Dr. McLellan and Dr. Coffey

Zackowski next argues that the ALJ erred by giving little

weight to the opinion of his treating physicians, Dr. McLellan

and Dr. David Coffey. According to Zackowski, the ALJ’s

findings regarding the lack of support for those opinions

erroneously ignores the Meserve assessment.

18 “If the ALJ does not afford controlling weight to the

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

for the weight afforded that source,’ which means that ‘the

ALJ's order must contain specific reasons for the weight given

to the treating source's medical opinion, supported by evidence

in the case record, and must be sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator

gave to the treating source's medical opinion and reasons for

that weight.’” Nelson v. Colvin, No. 15-CV-37-SM,

, at *5 (D.N.H. Mar. 30, 2016) (quoting Eley v. Colvin,

No. 14-CV-165-JL,

, at *2 (D.N.H. Apr. 21, 2015)

(further quotations omitted). As the court has determined, the

ALJ’s treatment of the Meserve assessment was supported by

substantial evidence. The reasons given by the ALJ in his

decision for discounting the opinions of Dr. McLellan and Dr.

Coffey are specific, and well-supported by the evidence in the

case record. See Admin. Rec. at 334-335 (citing Admin. Rec. at

597, 600, 713, 606). Accordingly, it cannot be said that the

ALJ erred by declining to give the opinions of Dr. McLellan and

Dr. Coffey controlling weight.

II. ALJ’s Evaluation of Claimant’s Testimony

Zackowski next argues that the ALJ’s evaluation of his

testimony regarding his symptoms is erroneous and unsupported by

19 substantial evidence. According to Zackowski, the ALJ’s

findings regarding inconsistencies between claimant’s testimony

and his treatment records do not constitute substantial evidence

to support the ALJ’s evaluation, because they are limited

portions of the lengthy record. Zackowski also takes issue with

the ALJ’s reliance on his function reports and activities of

daily living because they largely pre-date claimant’s first

hearing before the ALJ in 2014. He more generally argues that

the ALJ should not have relied upon his activities of daily

living because they have a limited correlation with his capacity

to maintain full time employment.

Neither argument is persuasive. First, the ALJ’s decision

makes evident that he comprehensively reviewed the entirety of

claimant’s extensive medical record. See Admin. Rec. at 329-

332. The ALJ’s finding concerning the inconsistency of

claimant’s statements with the medical record is well-supported

not only by the evidence cited by the ALJ in his decision, but

by substantial additional medical evidence in the record as

well. See Admin. Rec. at 333-334; see also Admin. Rec. at 627,

637, 650-51, 652-655, 666, 670. 2

2 The court also notes multiple instances in the medical record of claimant’s noncompliance with or lack of interest in treatment for the pain he purports to be suffering, “[i]n accord with the common sense notion that a person who does not follow a

20 Moreover, the ALJ’s reliance on Zackowski’s activities of

daily living in assessing his statements concerning the

intensity and persistence of his symptoms was not error. The

question was recently addressed by our court of appeals in

Coskery v. Berryhill,

(2018), where claimant

argued, in part, “that his ability to perform household chores,

care for a dog, shop for groceries, and engage in other daily

activities does not necessarily demonstrate that he is able to

perform ‘light work.’” The court disagreed, stating that Social

Security Ruling 16-3p “expressly requires that the ALJ consider

an applicant’s ‘[d]aily activities’ to ‘evaluate the intensity,

persistence, and limiting effects of an individual’s symptoms.’”

Coskery,

(quoting 82 Fed. Reg. at 494465).

Therefore, an ALJ can not “be said to have acted in

contravention of the requirements of SSR 16-3p in considering

the evidence of [claimant’s] daily activities.” Id. The court

further noted that it was not unreasonable for the ALJ to infer

“from what the record showed about Coskery’s ability to engage

in these types of daily activities, that Coskery could perform

light work,” and the ALJ had not relied solely on the evidence

course of treatment for pain may not be suffering from that pain as intensely as the person claims.” Coskery v. Berryhill,

(2018). See, e.g., Admin. Rec. at 302, 598-599, 601- 602, 603-604, 647, 656, 659.

21 of Coskery’s daily activities in finding that he had the

capacity to perform light work.

So too, here. The record indicates that Zackowski serves

as a primary caregiver to his young children (admin. rec. at

255, 283, 621, 637, 683, 728), drives (id. at 184, 615, 768),

prepares meals (id. at 183, 768), performs household chores (id.

at 255, 271, 768), grocery shops (id. at 184, 271), walks at

least a mile daily (id. at 654), and uses a snowblower (id. at

271). It was not unreasonable for the ALJ to note Zackowski’s

ability to engage in those activities when considering

claimant’s statements regarding the intensity, persistence and

limiting effect of his symptoms. And, the ALJ did not solely

rely upon Zackowski’s daily activities in making his

determination; he also referred to claimant’s records, medical

opinions, and claimant’s own inconsistent statements and

testimony.

In sum, the ALJ did not err in evaluating claimant’s

testimony.

III. Questioning of the Vocational Expert

Finally, Zackowski’s argues that the ALJ’s hypothetical

questioning of the vocational expert at the hearing failed to

incorporate all of the non-exertional limitations from the ALJ’s

22 RFC findings, specifically the 30-minute increment limitation.

Therefore, says Zackowski, the ALJ’s RFC findings are not

consistent with the hypothetical questioning of the vocational

expert, and with claimant’s ability to sustain employment on a

full-time basis.

At the hearing, the ALJ asked the vocational expert the

following hypothetical:

Q: And would you first please assume an ability to perform a range of light exertion work, maybe lifting occasionally up to 20 pounds, and frequently 10 pounds, with standing and walking for each – sitting standing, and walking each for up to four hours per workday in increments of 30 minutes. In terms of postural activities – let me see something. Would you please assume occasional stooping, crouching with no crawling; no climbing of ladders, or ropes, or scaffolds; and only occasional climbing of ramps and stairs; and with frequent balancing; only occasional pushing and pulling; and only occasional overhead work.

Given that hypothetical I can already eliminate the past work, would you assume an individual with the same vocational factors as the claimant and by that I mean the same age, education, and past work as the claimant and the hypothetical I just set forth above. Are there any jobs such an individual could perform in the national or regional economies?

Admin. Rec. at 66. As set forth above, the RFC assessed by the

ALJ is as follows:

the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)

23 and 416.967(b) except he is limited from standing, walking or sitting for more than 30 minutes at one time and for more than 4 hours total during an 8-hour workday. He can occasionally stoop, crouch, balance, kneel and climb stairs. He can occasionally push, pull, and work overhead. He cannot climb ladders/ropes or scaffolds.

Admin. Rec. at 333. As the Acting Commissioner points out, the

words may differ, but the substance is identical. Zackowki’s

argument to the contrary is not persuasive.

Conclusion

This court’s review of the ALJ’s decision is both limited

and deferential. The court is not empowered to consider

claimant’s application de novo, nor may it undertake an

independent assessment of whether he is disabled under the Act.

Rather, the court’s inquiry 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). Provided the ALJ’s findings are properly

supported by substantial evidence - as they are in this case -

the court must sustain those findings even when there may also

be substantial evidence supporting the contrary position. Such

is the nature of judicial review of disability benefit

determinations. See, e.g., Tsarelka v. Secretary of Health &

Human Services,

(1st Cir. 1988) (“[W]e must

uphold the [Commissioner’s] conclusion, even if the record

24 arguably could justify a different conclusion, so long as it is

supported by substantial evidence.”); Rodriguez v. Secretary of

Health & Human Services,

(1st Cir. 1981) (“We

must uphold the [Commissioner’s] findings in this case if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the

arguments advanced by both the Acting Commissioner and claimant,

the court necessarily concludes that there is substantial

evidence in the record to support the ALJ’s determination that

claimant was not “disabled,” as that term is used in the Act, at

any time prior to the date of her decision.

For the foregoing reasons, as well as those set forth in

the Acting Commissioner’s legal memorandum, claimant’s motion to

reverse the decision of the Commissioner (document no. 7) is

denied, and the Acting Commissioner’s motion to affirm her

decision (document no. 9) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

25 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 11, 2018

cc: D. Lance Tillinghast, Esq. Terry L. Ollila, Esq.

26