UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Diane Renee Gilmore, Claimant

v. Case No. 18-cv-256-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Diane Renee

Gilmore, moves to reverse or vacate the Acting Commissioner’s

decision denying her application for Supplemental Security

Income Benefits under Title XVI of the Act,

-

1383(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.

Factual Background

I. Procedural History.

Gilmore filed an application for supplemental security

income on September 22, 2015, 1 alleging that she had been unable

1 Claimant filed two previous applications alleging disability that were denied on November 15, 2012, and September 3, 2014, respectively. to work since January 7, 2007, due to a combination of mental

and physical impairments. 2 Administrative Record (“Admin. Rec.”)

at 57, 121. That application was denied (Admin. Rec. at 57,

71), and claimant requested a hearing before an Administrative

Law Judge (“ALJ”) (Admin. Rec. at 78).

On September 28, 2017, Gilmore appeared with counsel before

an ALJ, along with a vocational expert, who considered

claimant’s application de novo. Admin. Rec. at 23-71. At the

hearing, claimant amended her alleged onset date to August 20,

2015. Admin. Rec. at 576. On October 17, 2017, the ALJ issued

his written decision, concluding that Gilmore was not disabled,

as that term is defined in the Act, at any time prior to the

date of the decision. Id. at 10-22.

Gilmore sought review of the ALJ’s decision by the Appeals

Council. Admin. Rec. at 119. By notice dated January 29, 2018,

the Appeals Council denied Gilmore’s request for review. Admin.

2 The record is not entirely clear on the alleged onset date of disability. In the Joint Statement of Facts, the parties state the alleged onset date as January 7, 2007. However, the Initial Disability Determination and the Field Office Disability Report note the alleged onset date as July 12, 2011. Admin. Rec. at 58, 139.

In any event, the record is clear that the claimant subsequently amended her alleged onset date to August 20, 2015. Admin. Rec. at 576.

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

application for benefits became the final decision of the Acting

Commissioner, subject to judicial review. Id. at 1.

Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

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),

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

3 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 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.” 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 burden, the claimant must prove, by a preponderance

of the evidence, that her impairment prevents her from

4 performing her 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 her previous work, the burden shifts to the

Commissioner to show that there are other jobs in the national

economy that she can perform, in light of her 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

her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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

5 exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

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 Gilmore was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

. See generally Barnhart v. Thomas,

(2003). Accordingly, the ALJ first determined that Gilmore had

not been engaged in substantial gainful employment at any time

relevant to the decision. Admin. Rec. at 18. Next, he

concluded that Gilmore suffers from the following severe

impairment: “degenerative disc disease, obesity,

migraines/headaches, depression, and anxiety.” Id. at 18-19.

The ALJ also considered Gilmore’s obstructive sleep apnea, and

determined that it did not cause more than “minimal limitations

on the claimant’s work-related functioning,” and therefore was

not severe. Id. at 19. The ALJ then determined that Gilmore’s

6 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

19-21. Gilmore does not challenge any of those findings.

Next, the ALJ concluded that Gilmore retained the residual

functional capacity (“RFC”) to perform the exertional demands of

light work, as defined in 20 CFR 416.967(b), “except the

claimant can stand and walk for up to four hours and sit for up

to six hours in an eight-hour work date.” Admin. Rec. at 21.

The ALJ stated that claimant can “occasionally climb ladders and

stairs,” “occasionally balance, stoop, kneel, crouch, and

crawl.” Id. The ALJ further stated that the claimant is

limited to “simple, unskilled work,” “can maintain attention and

concentration for two-hour increments throughout an eight-hour

workday and forty-hour workweek,” and “should have a semi-

isolated work setting, for example no tandem tasks or team work,

and only brief and [superficial] social interaction with the

general public.” Id. In light of those restrictions, the ALJ

concluded that claimant was not capable of returning to her

prior job. Id. at 27.

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,

, and the testimony of the vocational expert at the

hearing, the ALJ concluded that “there are jobs that exist in

significant numbers in the national economy that the claimant

can perform.” Admin. Rec. at 27. 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) failing to fully develop the administrative

record; and (ii) placing great weight on the opinion of non-

examining state agency consultant, Dr. Jonathan Jaffe.

I. Development of the Record.

Claimant first argues that the ALJ failed to properly

develop the record as required by 20 CFR 416.912(2). In support

of that argument, claimant states that she retained counsel for

the matter on August 22, 2017, and, the next day, counsel

contacted the Office of Disability Adjudication and Review,

requesting a continuance of the hearing scheduled for September

28, 2017, because the medical records “appear to be . . .

missing providers and dates of service.” Admin. Rec. at 111.

Claimant’s request for a continuance was denied, and claimant

contends that, as a result of that denial, she was ultimately

8 unable to obtain portions of the medical record until after the

hearing was held.

Social Security proceedings are not adversarial in nature,

and therefore the ALJ has “a duty to develop an adequate record

from which a reasonable conclusion can be drawn.” Heggarty v.

Sullivan,

(1st Cir. 1991) (internal citations

and quotations omitted). That duty “is heightened where the

claimant is not represented by counsel, but applies in all

cases.” Silva v. US Soc. Sec. Admin., Acting Comm'r, No. 17-CV-

368-PB,

, at *5 (D.N.H. Aug. 3, 2018) (quoting

Brunel v. Barnhardt, No. 00-cv-402,

, *8 (D.N.H.

Jan. 7, 2002)) (additional citations omitted). “[F]or an ALJ’s

failure to develop the record to constitute reversible error,

the claimant must demonstrate that he or she has suffered some

prejudice as a result.”

(quoting Russell v. Colvin, No.

13-cv-398,

, *4 (D.N.H. Sept. 29, 2014)) (further

citations omitted). “Prejudice is demonstrated by showing that

the additional evidence might have led to a different decision.”

Silva,

, at *5 (internal quotation omitted).

Gilmore’s argument is unsupported. First, as the Acting

Commissioner points out, at the hearing before the ALJ,

Gilmore’s counsel did not object to the record, nor did he

present or even refer to different treatment records claimant

9 intended to submit for consideration by the ALJ. Admin. Rec. at

575-576. Instead, claimant’s counsel introduced updated medical

records, and explained to the ALJ that, following claimant’s

request for a continuance, the Office of Disability Adjudication

and Review “indicated that [the ALJ would] be amenable to

keeping the record open for an additional time period after the

hearing.” Admin. Rec. at 578. The ALJ accepted the additional

records presented at the hearing into evidence.

See also

Admin. Rec. at 16. And, it does not seem that claimant’s

counsel made any effort to supplement the record following the

hearing and before the ALJ issued his decision.

Second, and more importantly, claimant fails to establish

that any additional records she might have submitted would have

changed the outcome of the ALJ’s decision in her favor. See

Evangelista v. Sec'y of Health & Human Servs.,

(1st Cir. 1987) (“We have held that remand is indicated only if,

were the proposed new evidence to be considered, the Secretary's

decision ‘might reasonably have been different.’”) (citation and

internal quotations omitted). Critically, while Gilmore

contends she was unable to submit “portions of the medical

record,” she fails to identify what portion of the medical

treatment records she was unable to submit. Nor does Gilmore

make any effort to explain why those unidentified missing

10 medical records might have altered the ALJ’s decision. For all

those reasons, claimant has not sufficiently established that

ALJ failed to adequately develop the record to her detriment, or

that remand is warranted.

Claimant’s argument references her appeal to the Appeals

Council. Claimant did not submit any medical treatment records

to the Appeals Council following the ALJ’s decision. Instead,

claimant submitted a Physical Residual Functional Capacity

Questionnaire form, completed by Dr. Timothy Lacy, claimant’s

physician at Seacoast Pain Institute since 2016, on October 9,

2017. The Appeals Council determined that “this evidence does

not show a reasonable probability that it would change the

outcome of the decision.” Admin. Rec. at 2.

To the extent that claimant is making the argument that the

Appeals Council erred by denying review, generally, the Appeals

Council’s denial of review “is not reviewable on appeal except

in the exceptional situation when the denial ‘rests on an

explicit mistake of law or other egregious error.’” Williams v.

Colvin, No. 15–CV–416–JD, c, at *2 (D.N.H. Mar. 10, 2016)

(quoting Mills v. Apfel,

(1st Cir. 2001)). “In

that exceptional circumstance, the reason for denying review

must be both articulated and ‘severely mistaken’.”

(quoting

Mills,

). Gilmore falls far short of meeting that

11 standard. She fails to articulate precisely why Dr. Lacy’s

medical opinion would change the outcome of the ALJ’s decision.

Moreover, Dr. Lacy has been claimant’s physician since at least

December, 2016. Gilmore provides no explanation as to why this

medical opinion could not have been provided to the ALJ prior to

– or least at – the hearing. Thus, claimant has not

sufficiently established that the Appeals Council was

egregiously mistaken in denying review.

II. Substantial Evidence Supports the ALJ’s RFC Determination.

Second, Gilmore argues that the ALJ’s RFC determination is

not supported by substantial evidence because the ALJ erred in

relying on the opinion of Dr. Jaffe. Gilmore contends that the

ALJ’s reliance was erroneous because, at the time of Dr. Jaffe’s

review of Gilmore’s medical records, several pertinent medical

records were missing.

As this court has previously noted:

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, see

at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly

12 inconsistent” with, the reviewer's assessment. See Torres v. Comm. 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 closely reviewed claimant’s medical records,

including those post-dating Dr. Jaffe’s review, and determined

that those medical records were consistent with Dr. Jaffe’s

opinion. Admin. Rec. at 24. The ALJ capably explained that

determination with detailed citations to the record.

See

also Admin. Rec. 19-26. Claimant fails to point to any evidence

in the record inconsistent with the ALJ’s determination beyond

the opinion of Dr. Lacy, which, as previously discussed, was not

before the ALJ. Based on the court’s review, the record

supports the ALJ’s conclusion, and the ALJ did not err in

relying on Dr. Jaffe’s opinion.

13 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 she 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

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.”).

14 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 his 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. 11) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 18, 2019

cc: Christopher G. Roundy, Esq. John J. Engel, Esq. Michael L. Henry, Esq.

15