UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cindy Marie McCusker

v. Case No. 19-cv-853-PB Opinion No.

Andrew Saul, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Cindy Marie McCusker challenges the denial of her

application for disability insurance benefits pursuant to

(g). She contends that the Administrative Law Judge

(“ALJ”) committed reversible errors in evaluating her residual

functional capacity and relying upon faulty vocational expert

testimony. The Commissioner, in turn, moves for an order

affirming the ALJ’s decision. For the following reasons, I deny

McCusker’s motion and grant the Commissioner’s motion.

I. BACKGROUND1

A. Procedural Facts

McCusker is a 52-year-old woman with high school education.

She worked as an office manager until November 2014, when she

was forced to resign because she could no longer perform the

duties of her job. She alleged disability beginning that month,

1 I recount here only those facts relevant to the instant appeal. The parties’ more complete recitations in their Statements of Material Facts (Doc. No. 10 & 11) are incorporated by reference. due to right lateral epicondylitis (tennis elbow), a right

extension tendon tear, arthritis, fibromyalgia, hypothyroidism,

depression, and asthma.

McCusker’s application was initially denied in August 2016.

In June 2017, she testified at a hearing before ALJ Joshua

Menard, who ultimately denied her claim. The Appeals Council,

however, granted her request for review and remanded the case to

the ALJ in April 2018. The Appeals Council directed the ALJ to

further consider McCusker’s maximum residual functional capacity

(“RFC”) and to obtain supplemental testimony from a vocational

expert concerning the effect of the assessed limitations on

McCusker’s occupational base.

ALJ Menard held a second hearing in January 2019, which

included testimony from McCusker, an impartial medical expert,

and a vocational expert. The ALJ subsequently issued another

unfavorable decision. See Tr. 12-27. The Appeals Counsel later

denied McCusker’s request for review, rendering the ALJ’s

decision the final decision of the Commissioner. See Tr. 1-4.

McCusker now appeals.

B. Medical Evidence

In September 2014, rheumatologist Dr. John Shearman

diagnosed McCusker with lateral epicondylitis of the right arm

due to overuse syndrome. Tr. 461-62. He wrote a letter

indicating that she may need to miss work during flare-ups of

2 elbow pain, and he recommended that she work only four days a

week. Tr. 468. In November 2014, Dr. Shearman recommended that

McCusker remain out of work. Tr. 469. He did not record any

medical findings to support that recommendation. Instead, he

noted that McCusker had reported that she was dropping things

and having difficulty lifting a coffee cup. See Tr. 457-64.

McCusker saw Dr. Bruce Myers, a physiatrist, in December

2014, complaining of right elbow and wrist pain. Tr. 591. His

examination showed that she had reduced grip strength, pinch

strength, and range of motion in her right arm. Tr. 592. Dr.

Myers cleared McCusker for full-time work with the following

restrictions: no lifting more than ten pounds, only occasional

reaching and fine motor activities with the right arm, no

repetitive right elbow motions, and no more than forty minutes

per hour of combined writing and computer use. Tr. 543.

The following month, Dr. Myers’ colleague, Peter

Attenborough, PA-C, noted that McCusker’s right elbow pain had

improved significantly after a cortisone injection, but she

continued to report right wrist pain. Tr. 585. Upon

examination, she had right wrist and elbow tenderness, with

normal range of motion in both. Tr. 586. Mr. Attenborough

referred her to occupational therapy. Tr. 587. After a month

of occupational therapy, McCusker’s symptoms were slowly

improving. See Tr. 529. Meanwhile, a right wrist ultrasound

3 showed a very small effusion, very mild spurring at the

scapholunate joint, and no evidence of tenosynovitis, erosive

arthritis, or joint instability. Tr. 584.

In February 2015, Dr. Myers indicated on a workers’

compensation medical form that McCusker could lift twenty-five

pounds and was no longer limited in her ability to reach with

her right arm. Tr. 547. She showed signs of pain and

tenderness in her right elbow and wrist during examinations in

February and March 2015, but she still had normal range of

motion in both. See Tr. 579, 583.

Mr. Attenborough filled out a workers’ compensation medical

form on McCusker’s behalf in May 2015, noting that she continued

to complain of persistent right elbow pain. Tr. 550. He wrote

that she could continue working, but she could lift less than

ten pounds, could reach and drive occasionally, and could not do

repetitive motions with her right wrist and elbow. Tr. 550.

According to Mr. Attenborough’s progress note from the same day,

McCusker’s strength and functioning had improved since she

started occupational therapy, and she was “attempting to use the

right arm mor[e] normally.” Tr. 571. At the same time, he

noted tenderness and reduced range of motion in her right elbow

and wrist upon examination. Tr. 572. Mr. Attenborough

recommended further occupational therapy, a splint, and low

4 doses of ibuprofen for her wrist, as well as an ultrasound and

possible cortisone injection for her elbow. Tr. 573.

A June 2015 ultrasound showed a “triangular anechoic

defect” in McCusker’s right elbow, consistent with an extensor

tendon tear. Tr. 570. Her right wrist appeared essentially

normal on the ultrasound. Tr. 570. A follow-up MRI of the

right wrist showed trace joint effusion, mild tenosynovitis, and

a small cyst. Tr. 558-59. Dr. Myers subsequently recommended

tendon surgery for her elbow and Medrol for her wrist. Tr. 567.

McCusker saw orthopedist Dr. David Thut for a consultative

examination in July 2015. Tr. 625. She had pain and weakness

in her right elbow, but her range of motion and sensation were

intact. Tr. 627. Dr. Thut determined that she was fit to

return to work, with a restriction to lifting ten pounds at most

(five pounds frequently) and no reaching. Tr. 628. She had no

limitations on her ability to bend, sit, stand, walk, or perform

fine motor activities. Tr. 628. Dr. Thut filled out a workers’

compensation medical form with similar restrictions on October

15, 2015. Tr. 622; see also Tr. 639 (declaring her “[f]it for

work” with modifications).

Later that month, Dr. Thut performed a surgery on

McCusker’s right elbow. Tr. 601. The procedure was a

debridement of the right common extensor tendon and a repair to

the bone of that tendon. Tr. 601. Nine days after the surgery,

5 Dr. Thut declared McCusker unfit “for work of any sort at this

time,” but he noted that she had not yet reached maximum medical

improvement. Tr. 643. In early December, Dr. Thut cleared

McCusker for work that involved lifting no more than five

pounds, occasional reaching, and limited grasping with her right

arm. Tr. 624, 647. In January 2016, twelve weeks after the

surgery, Dr. Thut filled out a form indicating that the only

limitations to McCusker’s right arm functioning were lifting

five pounds and occasional reaching. See Tr. 649, 651.

Meanwhile, Mary Ann Johnson APRN, McCusker’s primary care

provider, contradicted Dr. Thut’s work assessment. From

December 2015 to February 2016, she filled out workers’

compensation forms indicating that McCusker could not work and

could not do any lifting with her right arm. See Tr. 775, 784,

800. In February 2016, McCusker continued to report ongoing

difficulty with her right elbow, including significant pain, to

Nurse Johnson, who increased her pain medication and recommended

that she get a second orthopedic opinion. See Tr. 801-04.

McCusker presented to orthopedist Dr. Nicholas Horangic for

a second opinion in May 2016. She reported no improvement after

surgery, ongoing burning sensation in her right dorsal forearm,

numbness and tingling in her middle and ring fingers, and pain

with activities involving extension and supination. Tr. 822.

She described her pain as 8/10 regularly and 10/10 with use.

6 Tr. 822. Her grip strength on the right was five pounds,

compared to fifty-five pounds on the left. Tr. 823. Dr.

Horangic diagnosed her with persistent right elbow pain and

symptoms consistent with a radial tunnel syndrome. Tr. 823.

Dr. Horangic filled out workers’ compensation paperwork

indicating that McCusker could not work, but he did not specify

any restrictions. See Tr. 942-43. He submitted the same

paperwork three more times through April 2017. See Tr. 944-49.

In August 2016, McCusker presented to neurologist Dr. Jorge

Almodovar Suarez for nerve testing, following a referral from

Dr. Horangic. Tr. 908. Upon examination, Dr. Almodovar Suarez

noted that McCusker had normal motor functioning, full strength

(albeit with some pain during motion testing of her right arm),

and normal sensation. Tr. 910-13. He stated, however, that the

examination was “not reliable, since I am not able to get full

effort from the patient.” Tr. 913. Dr. Almodovar Suarez

suspected mononeuropathies and complex regional pain syndrome as

“part of the differential diagnosis.” Tr. 913. An EMG/nerve

conduction study he commissioned, however, did not support

either diagnosis, as the results were essentially normal. See

Tr. 914, 917, 995.

Dr. Horangic subsequently recommended lateral epicondylar

steroid injections, and McCusker agreed. Tr. 915. In January

2017, however, McCusker reported that her symptoms had returned

7 two weeks after the injections. Tr. 920. Dr. Horangic’s exam

at that time showed maximum area of tenderness over the lateral

epicondyle and radial tunnel, as well as severe pain with

resisted wrist extension and resisted finger extensions. Tr.

920. Dr. Horangic recommended a radial tunnel blockade, which

was performed in February 2017 and yielded only temporary

relief. See Tr. 952. McCusker discussed with Dr. Horangic the

possibility of a revision surgery on several occasions. See Tr.

920, 953.

In March 2017, McCusker underwent an independent medical

examination with orthopedic surgeon Dr. Kenneth Polivy. See Tr.

980-84. Upon examination, her right elbow was tender to

palpation, and she reported a burning sensation along the ulnar

groove, but she had full range of motion in her right shoulder,

wrist, and hand, with intact sensation and a negative Tinel’s

sign. Tr. 982-83. She also had a “mild subjective decrease in

strength in the right hand, with reports of pain in the elbow

while shaking the hand.” Tr. 983. Her spine and other

extremities appeared normal. Tr. 982-83. Dr. Polivy opined

that she had a 20% loss of grip strength, which translated to an

“8% permanent impairment of the right upper extremity.” Tr.

983. He noted that she “should be capable of full-time, light

duty work activity with a 5[-]pound lifting restriction and

8 limited repetitive use of the right hand,” which meant no

“prolonged keyboarding.” Tr. 984.

The following month, Dr. Horangic noted that McCusker

showed signs of ulnar neuropathy during a clinical examination,

and he recommended repeat electrodiagnostic testing to confirm.

Tr. 952-53. The testing, however, showed no evidence of right

ulnar neuropathy or right-sided cervical radiculopathy. See Tr.

995. There was “[m]ildly prolonged distal latency,” but it was

“not significant enough to meet the criteria for abnormality.”

Tr. 995. The study prompted Dr. Horangic to rule out carpal

tunnel syndrome and right ulnar neuropathy as diagnoses. Tr.

1000-01.

In May 2017, Dr. Horangic completed a medical source

statement on McCusker’s behalf. See Tr. 961-66. He opined that

she should never use her right dominant arm to lift, carry,

reach, handle, finger, feel, push or pull. Tr. 961, 963. Dr.

Horangic also indicated that she should never climb ladders or

scaffolds, balance, stoop, kneel, crouch, crawl, or work in

unprotected heights, with moving mechanical parts, or in

humidity and wetness. Tr. 964-65. When asked to identify the

medical or clinical findings supporting his assessment, Dr.

Horangic declined to answer. See Tr. 961, 963-65.

Nurse Johnson, McCusker’s primary care provider, also

completed a medical source statement that same month. See Tr.

9 968-73. She opined that McCusker could occasionally lift and

carry ten pounds with her right arm, occasionally reach, handle,

push and pull with that arm, occasionally kneel or crouch, and

never crawl or climb ladders or scaffolds. Tr. 968, 670-71.

McCusker returned to Dr. Horangic in March 2018, reporting

that she continued to have pain in her right elbow, as well as

burning sensation at the ulnar level in the cubital tunnel and

numbness and tingling in her right ring and pinky fingers. Tr.

1000. Dr. Horangic recommended right elbow surgery to address

her lateral right elbow and radial tunnel symptoms. Tr. 1001.

He performed that surgery in August of that year. Tr. 1142-43.

Two weeks after surgery, Dr. Horangic noted that she was “doing

well” and cleared her to resume “full elbow[,] forearm[,] wrist

and hand range of motion” and to lift no more than five pounds

with her right arm. Tr. 1210.

Impartial medical expert Dr. Joseph Gaeta testified at the

January 2019 hearing based on his review of the entire medical

record. See Tr. 85-103. He opined that McCusker still retained

some functional capacity in the right arm despite her symptoms,

specifying that she could lift and carry five pounds, as well as

occasionally push, pull, and reach with that arm. Tr. 88-89,

97-98. Dr. Gaeta testified that Dr. Horangic’s May 2017 opinion

that McCusker could never do anything with her right arm was

“too restrictive.” Tr. 90. Dr. Gaeta questioned Dr. Horangic’s

10 objectivity, noting that Dr. Horangic had checked boxes

indicating that McCusker could never kneel, crouch, stoop, or

balance, even though her right arm impairment would not have

affected any of those activities and there was no evidence of

other impairments supporting those limitations. Tr. 91-92. Dr.

Gaeta acknowledged that imaging studies confirmed a right arm

impairment, but he explained that those images did “not relate

to the function of the extremity.” Tr. 92-93.

C. The ALJ’s Decision

The ALJ assessed McCusker’s claim under the five-step,

sequential analysis required by

. At step

one, he found that McCusker had not engaged in substantial

gainful activity since November 17, 2014, her alleged disability

onset date. Tr. 17. At step two, the ALJ found that her

chronic right lateral epicondylitis of the right arm was a

severe impairment. Tr. 17. The ALJ also found that her

degenerative disc disease, migraines, and thyroid disorder were

not severe impairments. Tr. 17. At step three, the ALJ

determined that none of McCusker’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19;

see

(d). The ALJ then found that McCusker

had the RFC to perform light work as defined in

(b), except she could only lift and carry five pounds

11 with her right arm, could occasionally push and pull, reach

overhead, and reach in all other directions with her right arm,

and could never climb ladders, ropes or scaffolds. Tr. 19.

The ALJ gave “great weight” to Dr. Gaeta’s opinion, finding

it consistent with, and well supported by, the medical evidence.

Tr. 22. The ALJ gave “little weight” to the opinions of

McCusker’s treating providers, including Dr. Thut, Dr. Horangic,

and Dr. Myers. Tr. 22-25.

Relying on the testimony of a vocational expert, the ALJ

then found at step four that McCusker could not perform her past

relevant work. Tr. 25. However, the ALJ found at step five

that other jobs existed in the national economy that McCusker

could perform, including a furniture rental clerk, usher, and

school bus monitor. Tr. 26. Accordingly, the ALJ concluded

that McCusker had not been disabled from the alleged disability

onset date through the date of his decision. Tr. 26-27.

II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the [Commissioner] used the

proper legal standards and found facts [based] upon the proper

quantum of evidence.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). I defer to the Commissioner’s

findings of fact, so long as those findings are supported by

substantial evidence.

Substantial evidence exists “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) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Id. at 770.

The Commissioner’s findings are not conclusive, however, “when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999) (per curiam). “Issues of credibility and the

drawing of permissible inference from evidentiary facts are the

prime responsibility of the Commissioner, and the resolution of

conflicts in the evidence and the determination of the ultimate

question of disability is for [him], not for the doctors or for

the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

McCusker alleges that any one of four errors in the ALJ’s

decision warrants remand. First, she contends that the ALJ

13 failed to evaluate her complex regional pain syndrome in

accordance with Social Security Ruling 03-2p. Second, she

argues that the ALJ improperly evaluated her complaints of

fatigue and pain. Third, McCusker argues that the ALJ’s RFC

finding is not supported by substantial evidence. Finally, she

maintains that the ALJ’s step five finding is flawed because he

relied on vocational expert (“VE”) testimony that was

inconsistent with the Dictionary of Occupational Titles (“DOT”)

and did not clarify whether the job numbers cited by the VE

included only full-time jobs. I address each argument in turn

and conclude that none has merit.

A. Evaluation of Complex Regional Pain Syndrome

McCusker argues that the ALJ erroneously failed to consider

her diagnosis of complex regional pain syndrome (“CRPS”) of the

right arm and to evaluate it under the standards set forth in

Social Security Ruling (“SSR”) 03-2p,

(Oct. 20,

2003). McCusker does not specify at which step of the

sequential analysis this purported error took place. To the

extent she is alleging that the ALJ should have found CRPS to be

a severe medically determinable impairment at step two, she has

not met her burden of demonstrating that reversal is warranted

on this basis for two independent reasons.

First, the record does not support McCusker’s contention

that she was in fact diagnosed with CRPS. Dr. Almodovar Suarez

14 did note that “[i]n addition to mononeuropathies, [CRPS] is part

of the differential diagnosis,” but this was subject to an

EMG/nerve conduction study to confirm his suspicions. See Tr.

913. That testing did not support the diagnosis, as the results

were essentially normal. See Tr. 914, 917, 995. No other

medical provider diagnosed the condition either. Accordingly,

the ALJ did not err in declining to accept CRPS as a medically

determinable impairment.

Second, where, as here, the ALJ finds at least one severe

impairment and continues the sequential analysis, any error at

step two is harmless “unless the claimant can demonstrate that

the error proved outcome determinative in connection with the

later assessment of her residual functional capacity.” Lawton

v. Astrue,

,

, at *7 (D.N.H. July 24,

2012) (internal quotation marks and brackets omitted); accord

Gruhler v. Berryhill,

,

, at *6

(D.N.H. Dec. 20, 2017). McCusker has not met this burden. The

ALJ did not ignore McCusker’s right arm pain and related

limitations in her functioning when assessing her RFC.

Following numerous medical providers who treated McCusker’s

symptoms without associating them with CRPS, the ALJ considered

them as symptoms of her chronic right lateral epicondylitis. As

discussed further below, the ALJ supportably credited Dr.

Gaeta’s opinion that, despite her symptoms, McCusker could

15 perform light work with certain restrictions that the ALJ

incorporated into the RFC finding, and he supportably discounted

McCusker’s testimony that her pain effectively precluded her

from using her right arm. Therefore, McCusker has not shown

that the ALJ erred in failing to identify CRPS as a severe

medically determinable impairment or otherwise committed a

reversible error when considering her associated symptoms in

crafting her RFC.

B. Evaluation of Subjective Complaints

McCusker argues that the ALJ’s RFC determination cannot

stand because the ALJ did not properly evaluate her complaints

of fatigue and pain. I find that the ALJ supportably discounted

her subjective reports regarding the intensity, persistence, and

limiting effects of fatigue and pain as not entirely consistent

with the medical evidence and other evidence in the record.

In crafting a claimant’s RFC, an ALJ must consider all of a

claimant’s alleged symptoms and determine the extent to which

those symptoms can reasonably be accepted as consistent with

objective medical evidence and other record evidence.

(a); SSR 16-3p,

, at *2 (Mar. 16,

2016). This involves a two-step inquiry. First, the ALJ must

determine whether the claimant has a “medically determinable

impairment” that could reasonably be expected to produce her

alleged symptoms. SSR 16-3p,

, at *3. Second,

16 the ALJ evaluates the “intensity, persistence, and limiting

effects of [those] symptoms” to determine how they limit the

claimant’s ability to perform work-related activities. Id. at

*4. The ALJ must “examine the entire case record” in conducting

this evaluation, including objective medical evidence, the

claimant’s own statements and subjective complaints, and any

other relevant statements or information in the record. Id.;

see Coskery v. Berryhill,

(1st Cir. 2018).

The ALJ cannot disregard the claimant’s statements about

her symptoms solely because they are unsubstantiated by

objective medical evidence. See SSR 16-3p,

, at

*5. Rather, an inconsistency between subjective complaints and

objective medical evidence is just “one of the many factors” to

consider in weighing the claimant’s statements.

Other factors the ALJ must consider, known as the “Avery

factors” in the First Circuit, include (1) the claimant’s daily

activities; (2) the location, duration, frequency, and intensity

of the pain or symptom; (3) any precipitating and aggravating

factors; (4) the effectiveness of any medication currently or

previously taken; (5) the effectiveness of non-medicinal

treatment; (6) any other self-directed measures used to relieve

pain; and (7) any other factors concerning functional

limitations or restrictions. Avery v. Sec’y of Health & Human

Servs.,

(1st Cir. 1986); see 20 C.F.R.

17 § 404.1529(c)(3). But the ALJ is not required to address every

Avery factor in his written decision for his evaluation to be

supported by substantial evidence. Deoliveira v. Berryhill,

,

, at *5 (D.N.H. Jan. 2, 2019).

Instead, the decision need only “contain specific reasons for

the weight given to the individual’s symptoms, be consistent

with and supported by the evidence, and be clearly articulated

so the individual and any subsequent reviewer can assess how the

adjudicator evaluated the individual’s symptoms.” SSR 16-3p,

, at *9.

At the hearing, McCusker testified that she was constantly

fatigued as a side effect of her pain medication and needed to

lie down frequently during the day. See Tr. 64-65, 125-26. She

also testified that the medication only “takes the edge off” her

pain, and that pain effectively precluded her from using her

dominant right arm on a regular basis. Tr. 119. In fact, she

stated that she could not even pick up a coffee cup with her

right arm and could sign her name only by supporting her right

hand with the left. Tr. 119. The ALJ gave sufficiently

specific reasons for discounting McCusker’s complaints of such

disabling symptoms.

First, the ALJ cited the inconsistency between McCusker’s

complaints and the objective medical evidence. The ALJ noted

that the treatment records described her as comfortable or in no

18 acute distress, except for one visit when Nurse Johnson

described her as in pain. Tr. 22. As the ALJ explained,

“[t]hat this was only observed at one visit further suggests

that it was an isolated presentation.” Tr. 22. Similarly, the

ALJ explained that the treatment notes did not describe McCusker

as fatigued, despite her testimony that she was experiencing

constant fatigue. Tr. 22. Further, McCusker’s testimony that

pain prevented her from even holding a coffee cup was

inconsistent with both examinations showing that she had no

sensory deficits and retained some strength and range of motion

in her right arm, as well as the opinions of multiple medical

sources that she could lift and carry at least five pounds with

her right arm and had sufficient range of motion for other

tasks. Tr. 20-25. The ALJ was entitled to consider those

inconsistencies as a factor in evaluating McCusker’s subjective

complaints.

Second, the ALJ found McCusker’s activities of daily living

at odds with her endorsements of disabling pain and fatigue. He

noted that, apart from difficulty combing her hair, she did not

report difficulties attending to her personal hygiene. Tr. 22.

She also acknowledged doing house and yard work with pain,

“which shows that she remained functionally capable despite the

pain.” Tr. 22. Lastly, she remained able to drive, which the

19 ALJ explained requires use of her right hand to turn the key in

the ignition, change gears, and grip the wheel. Tr. 22.

In short, the ALJ offered specific reasons, supported by

the record, for discounting McCusker’s statements concerning the

intensity, persistence, and limiting effects of her fatigue and

pain. The ALJ’s evaluation is, therefore, entitled to

deference.

C. Challenge to Supportability of RFC Finding

McCusker also argues that the record, considered as a

whole, does not support the ALJ’s RFC finding. Instead of

finding fault with the evidence upon which the ALJ relied, she

merely points to other evidence that she contends supports a

more restrictive RFC. To the extent she is asking me to reweigh

the evidence, I cannot do so. See Irlanda Ortiz,

. I can review only the sufficiency of the evidence, not its

weight, and there was certainly evidence in the record that a

reasonable person would accept as adequate to support the ALJ’s

RFC finding. See

Notably, the ALJ relied most heavily on the opinion of Dr.

Gaeta, the independent medical expert who testified at

McCusker’s second hearing based on his review of the entire

record.2 Dr. Gaeta testified that, despite multiple surgeries,

2 In his written decision, the ALJ referred to Dr. Kwock as the testifying independent medical expert instead of Dr. Gaeta. 20 continued symptoms, and persistent pain, McCusker retained some

degree of functioning with her right arm. Specially, he opined

that McCusker could lift and carry five pounds, as well as

occasionally push, pull, and reach in all directions with her

right arm. Tr. 88-89, 97-98. The ALJ’s RFC finding mirrors Dr.

Gaeta’s opinion. See Tr. 19. The ALJ reasoned that Dr. Gaeta’s

opinion was entitled to “great weight” because he “gave a well-

reasoned opinion that he supported with direct reference” to the

record evidence, and he had considered McCusker’s functioning

over the entire relevant period. Tr. 20. The ALJ also reasoned

that Dr. Gaeta’s opinion was generally consistent with the most

recent opinion of Dr. Thut, one of McCusker’s surgeons. See Tr.

22-23. Although in the immediate post-operative period Dr. Thut

indicated that McCusker had limited work capacity and multiple

restrictions on using her right arm, in January 2016, he opined

that McCusker could lift five pounds and occasionally reach with

her right arm. See Tr. 649, 651. Dr. Thut did not impose any

other restrictions on her right arm functioning at that time.

See Tr. 651. Further, Dr. Gaeta adequately explained why he

found Dr. Horangic’s opinion endorsing further restrictions to

Having reviewed the ALJ’s decision and Dr. Gaeta’s testimony, I conclude that this was a clerical error that does not constitute grounds for remand. See Ortiz v. Colvin,

(W.D.N.Y. 2018) (collecting cases holding that the ALJ’s inadvertent use of the wrong name to refer to a doctor did not affect the analysis and did not justify remand). 21 McCusker’s right arm functioning unpersuasive, observing that

Dr. Horangic had also imposed other restrictions that had no

connection to her right arm impairment and no basis in the

record. See Tr. 91-92.

McCusker does not challenge the ALJ’s weighing of the

opinion evidence generally or Dr. Gaeta’s opinion specifically.

But even if she did, I conclude that the ALJ offered adequate

reasons to account for the weight he assigned to Dr. Gaeta’s

opinion. See

(c)(3) (“The more a medical

source presents relevant evidence to support a medical opinion,

. . . the more weight we will give that medical opinion.”);

§ 404.1527(c)(4) (“Generally, the more consistent a medical

opinion is with the record as a whole, the more weight we will

give to that medical opinion.”); id. § 404.1527(c)(6) (“[T]he

extent to which a medical source is familiar with the other

information in [a claimant’s] case record [is among] relevant

factors that we will consider in deciding the weight to give to

a medical opinion.”). Accordingly, I conclude that the ALJ was

entitled to rely upon Dr. Gaeta’s opinion in crafting the RFC.

It is true, as McCusker points out, that there is other

evidence in the record supporting further restrictions to her

RFC. The ALJ did not ignore the evidence on which McCusker

relies; instead, he considered that evidence and reasonably

found that it was inconsistent with other substantial evidence

22 in the record. Because it is the ALJ’s job to choose between

two conflicting views of the evidence, his RFC finding is

conclusive. See Purdy,

.

D. Step Five Challenges

Finally, McCusker challenges the ALJ’s finding at step five

of the sequential analysis that she could perform jobs in the

national economy such as a furniture rental clerk, usher, and

school bus monitor. She argues that the ALJ erroneously relied

on the VE’s testimony that a hypothetical claimant with the same

functional limitations as McCusker could perform those jobs

without resolving a conflict with the DOT and without clarifying

the nature and availability of the identified jobs. Neither

argument has merit.

McCusker contends that the VE’s testimony conflicts with

the DOT because the DOT does not address whether the jobs in

question can be performed when there are functional restrictions

on using one’s dominant arm. There is no conflict here. The VE

used her experience to supplement the DOT in an area where the

DOT was silent, as she was permitted to do. See SSR 00-4P,

, at *2 (Dec. 4, 2000) (“Evidence from VEs . . . can

include information not listed in the DOT.”).

Next, McCusker argues that the ALJ failed to determine

whether the number of jobs cited by the VE included part-time or

full-time jobs and when those jobs were available. I have

23 previously rejected the same arguments, and McCusker cites no

authority suggesting that a different outcome is warranted here.

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

,

, at *5-6 (D.N.H. Nov. 16, 2017). As I explained

in Godin, there is no requirement that the VE testify to only

full-time jobs, as opposed to part-time jobs. See

In

addition, here, as in Godin, the ALJ’s questioning allows me to

infer that he was referring to jobs that were currently

available. See id.; see also Tr. 128. Accordingly, McCusker’s

challenges to the ALJ’s step five finding fail.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

the Commissioner’s motion to affirm (Doc. No. 12) and deny

McCusker’s motion for an order reversing the Commissioner’s

decision (Doc. No. 8). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

November 10, 2020

cc: Christine Woodman Casa, Esq. Michael L. Henry, Esq.

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