UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Charles Philip Wiggin

v. Civil No. 23-cv-30-JL Opinion No.

Kilolo Kijakazi, Acting Commissioner of Social Security

MEMORANDUM ORDER

Charles Philip Wiggin appeals the Acting Commissioner’s decision denying his

applications for disability insurance benefits under Title II and supplemental security

income under Title XVI of the Social Security Act. The Administrative Law Judge

(“ALJ”) found that although Mr. Wiggin had severe impairments due to obstructive sleep

apnea, degenerative disc disease, and post-traumatic stress disorder, he retained the

residual functional capacity to do his prior work as a spooling machine operator. Mr.

Wiggin contends that the ALJ erred in his evaluation of the medical opinion of a

consultative psychologist and improperly assessed his residual functional capacity.

On appeal, Mr. Wiggin asks the court to reverse the Acting Commissioner’s

decision and to remand the case for further administrative proceedings. See LR 9.1(c).

The court has jurisdiction under

(g) (Social Security). The Acting

Commissioner objects to Mr. Wiggin’s motion and moves to affirm the decision. See LR

9.1(d). For the reasons that follow, the court grants the Acting Commissioner’s motion to

affirm and denies Wiggin’s motion to reverse and remand. I. Applicable legal standard

For purposes of review under § 405(g), the court “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); accord

Sacilowski v. Saul,

(1st Cir. 2020). Questions of law are reviewed de

novo. Seavey v. Barnhart,

(1st Cir. 2001). The ALJ's factual findings must

be affirmed if they are supported by substantial evidence. Biestek v. Berryhill,

(2019). Substantial evidence is “more than a mere scintilla” and means “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”

(cleaned up). The court must affirm the ALJ's findings, even if

the record could support a different conclusion, when “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate to support [the ALJ's]

conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs.,

(1st

Cir. 1991); accord Purdy v. Berryhill,

(1st Cir. 2018).

To establish disability for purposes of benefits under Title II and Title XVI under

the Social Security Act, an adult claimant must demonstrate an inability “to engage in

any substantial gainful activity by reason of any medically determinable physical or

mental impairment . . . which has lasted or can be expected to last for a continuous period

of not less than twelve months.”

(d)(1)(A) & 1382c(a)(3)(A). “An ALJ

employs a five-step test to determine if an individual is disabled within the meaning of

the Social Security Act” that asks “questions that are sequential and iterative, such that

2 the answer at each step determines whether progression to the next is warranted.”

Sacilowski,

. The steps are: (Step 1) whether the claimant is currently

engaging in substantial gainful activity; if not, (Step 2) whether the claimant has a severe

impairment; if so, (Step 3) whether the impairment meets or medically equals an entry in

the Listing of Impairments; 1 if not, (Step 4) whether the claimant's residual functional

capacity is sufficient to allow her to perform any of her past relevant work; and if not,

(Step 5) whether, in light of the claimant's residual functional capacity, age, education,

and work experience, she can make an adjustment to other work available in the national

economy.2

(citing

(a)(4)(i)-(v)); see also §§ 416.920(a)(4)(i)-

(v).3 The claimant bears the burden of showing he is disabled through the first four steps,

but at Step 5 the Commissioner must provide evidence to show that there are jobs in the

national economy that the claimant can do. Sacilowski,

.

1 To evaluate a mental impairment for purposes of the Listing of Impairments at Step 3, the ALJ must follow a technique to identify the impairment and to rate the degree of functional imitation caused by the impairment.

.1520a;

.920a. 2 Between Step 3 and Step 4, the court assesses the claimant’s residual functional capacity to determine whether he has the capacity to work despite his limitations.

(a) & 416.945(a). 3 20 C.F.R. Part 404 applies to claims for disability insurance benefits, while 20 C.F.R. Part 416 applies to claims for supplemental security income, but the regulations provide the same five-step analytical framework and are otherwise the same for purposes of the issues in this case. See Reagan v. Sec'y of Health & Human Servs.,

(1st Cir. 1989). For that reason, the court will refer to Part 404 in the citations to the regulations.

3 II. Background

The background information is a summary of the plaintiff's factual statement and

the Acting Commissioner's statement, along with references to the administrative record

(“Tr.”).4

A. Employment and medical background

From 2010 to 2016, Mr. Wiggin worked as a spooling machine operator, which

required him to use machinery to wind cable onto spools.5 He then worked for Tractor

Supply Co. as a receiver and shipper where he loaded and unloaded trucks using a

forklift, filled propane tanks, stocked shelves, and maintained the outside area of the

facility.6 Mr. Wiggin was fired from the job at Tractor Supply in September of 2016

when he refused to do something that was not in his job order.7

Mr. Wiggin applied for social security benefits in April of 2020 when he was 53.8

He alleged disability based on a primary diagnosis of disorders of the skeletal spine and a

secondary diagnosis of sleep-related breathing disorders.9 Mr. Wiggin had spinal

surgeries in 2005 and 2006.10 During the period between December 2019 and March

4 Under the Local Rules in this district, the plaintiff in a social security case is tasked with filing a statement of material facts, and the government is directed to file a statement of facts only if material facts were omitted from the plaintiff's statement. LR 9.1(c) & (d). 5 Tr. at 302-03. 6 Tr. at 301-03. 7 Tr. at 295 & 331. 8 Tr. at 21; Tr. at 69 (date of birth). 9 Tr. at 69. 10 Tr. at 602. 4 2020, Mr. Wiggin was diagnosed with obstructive sleep apnea and was prescribed a

CPAP machine to sleep.11 He had a psychiatric assessment in November of 2019 because

of depression, nightmares, and other symptoms and was diagnosed with post-traumatic

stress disorder related to his younger brother’s suicide.12

For purposes of his social security application, Mr. Wiggin had a consultative

psychological examination with Darlene R. Gustavson, Psy.D. in May of 2021.13 Dr.

Gustavson noted that Mr. Wiggin was polite and cooperative but was also depressed and

tearful.14 Based on her testing and evidence made available to her, Dr. Gustavson found

that Mr. Wiggin was able to understand and remember information and complete tasks, to

interact with others as needed, and to sustain attention and focus to complete tasks.15 She

also found that he was “unable to consistently regulate his emotions to [sic] due to

irritability, fatigue, poor sleep and resulting poor attendance.”16 She recommended

continued mental health treatment.17

Jan Jacobson, Ph.D. reviewed the record in August of 2021, including Dr.

Gustavson’s evaluation of Mr. Wiggin, to complete a mental residual functional capacity

11 Tr. at 70-75. 12 Tr. at 569-71. 13 Tr. at 605-609. 14 Tr. at 607. 15 Tr. at 608. 16

17 Tr. at 609. 5 assessment for the New Hampshire Disability Determination Service.18 Dr. Jacobson

found no limitation in Mr. Wiggin’s ability understand and remember, to sustain

concentration and persistence, and to have social interactions, but found that Mr. Wiggin

had moderate limitation in his ability to respond appropriately to changes in the work

setting.19 Dr. Jacobson stated that despite the moderate limitation, Mr. Wiggin could

respond appropriately to infrequent changes in the work setting.20

B. Procedural background

Mr. Wiggin’s applications for social security benefits were denied initially and on

reconsideration.21 Mr. Wiggin requested a hearing, which was held by telephone on

February 1, 2022.22 Mr. Wiggin was represented by his attorney and testified.23 A

vocational expert also testified.24

Based on the record evidence and the testimony at the hearing, the ALJ found that

Mr. Wiggin had severe impairments of obstructive sleep apnea, degenerative disc disease,

and post-traumatic stress disorder (“PTSD”) and a residual functional capacity to do light

work with certain additional limitations.25 The ALJ then found, relying on the vocational

18 Tr. at 108-09. 19 Tr. at 109. 20

21 Tr. at 21. 22

23

24

25 Tr. at 24 & 26. 6 expert’s opinion, that Mr. Wiggin could do his previous work as a spooling machine

operator.26 For that reason, the ALJ found that Mr. Wiggin was not disabled.27

Mr. Wiggin sought review of the ALJ’s decision by the Appeals Council.28 The

Appeals Council denied review, making the ALJ’s decision the final decision of the

Acting Commissioner.29

III. Analysis

In support of his motion to reverse and remand the ALJ’s decision, Mr. Wiggin

contends that the ALJ erred in his evaluation of Dr. Gustavson’s opinion and failed to

address his own finding of moderate limitations that caused the ALJ to err in the residual

functional capacity assessment. Specifically, Mr. Wiggin contends that the ALJ did not

consider Dr. Gustavson’s opinion that he had difficulty regulating his emotions, which he

contends would cause him to be off task and preclude him from working. Mr. Wiggin

also contends that the ALJ’s finding of moderate impairment in his ability to adapt and

manage himself, for purposes of the mental impairment technique under § 404.1520a,

conflicts with the residual functional capacity assessment. The Acting Commissioner

26 Tr. at 30. 27 Tr. at 30-31. 28 Tr. at 1. 29 Id.

7 argues that the ALJ properly considered Dr. Gustavson’s opinion and correctly assessed

Mr. Wiggin’s residual functional capacity in light of the other evidence in the record.

A. Medical opinions

For purposes of determining a claimant’s residual functional capacity, the ALJ

considers the medical opinions and prior administrative medical findings in the

administrative record.

.1520c(a). The ALJ determines the persuasiveness

of medical opinions and findings based on the following factors: (1) the supportability of

a medical opinion; (2) the extent to which the opinion is consistent with evidence from

other sources; (3) the medical source’s relationship with the claimant, (4) the

specialization of the medical source, and (5) certain other factors such as the familiarity

of the medical source with the disability program.

.1520c(c). The most

important factors are supportability and consistency. § 404.1520c(a); § 404.152c(b)(2);

Purdy v. Berryhill¸

(1st Cir. 2018).

The ALJ found Dr. Gustavson’s opinion that Mr. Wiggin had difficulty regulating

his emotions persuasive and stated that the opinion was well supported by Dr.

Gustavson’s evaluation of Mr. Wiggin. The ALJ found that Dr. Jacobson’s opinion was

generally consistent with Dr. Gustavson’s opinion and found Dr. Jacobson’s opinion

persuasive that Mr. Wiggin could adapt and manage himself if he were limited to

infrequent changes in the work setting. The ALJ also found, based on that opinion, that

infrequent changes in the work setting would minimize the triggers for Mr. Wiggin’s

emotional outbursts.

8 Although Mr. Wiggin states generally that the ALJ did not evaluate Dr.

Gustavson’s opinion in accordance with the regulatory requirements, he identified no

errors. As noted above, the ALJ found Dr. Gustavson’s opinion persuasive and applied

the correct standard in his evaluation of the opinion. The ALJ also found Dr. Jacobson’s

opinion generally persuasive to the extent it agreed with Dr. Gustavson’s findings. The

ALJ found based on Dr. Jacobson’s opinion that Mr. Wiggin’s emotional outbursts could

be controlled by infrequent changes in the work setting. Mr. Wiggin has not shown any

error in the ALJ’s evaluation of Dr. Gustavson’s opinion and did not address Dr.

Jacobson’s opinion. Therefore, the ALJ properly relied on both opinions for purposes of

the residual functional capacity assessment.

B. The ALJ’s paragraph B finding

The ALJ followed the technique required under § 404.1520a in finding that Mr.

Wiggin did not meet or equal the requirements for a listed mental impairment which

includes making findings for the “paragraph B” criteria that pertain to the severity of

mental impairments.30 In evaluating the paragraph B criteria, the ALJ found that Mr.

Wiggin had moderate limitation in his ability to adapt or manage himself. Because the

30 Tr. at 25-26. For paragraph B, “[t]he ALJ uses a five-point rating scale: none, mild, moderate, marked, and extreme.” Leean L. v. Kijakazi,

, at *3 (D.R.I. Dec. 1, 2022) (citing

.920a(c)(4), which is the same as § 404.1520a(c)(4)). 9 applicable listed impairment, Listing 12.15, required at least two “marked” limitations or

one “extreme” limitation, Mr. Wiggin did not meet the requirements for Listing 12.15.31

Mr. Wiggin argues that the ALJ erred in not incorporating his finding for purposes

of paragraph B into the residual functional capacity assessment. An ALJ makes

paragraph B findings for Steps 2 and 3 to rate the severity of mental impairments and to

determine whether a mental impairment meets or equals a listed impairment. SSR 96-8p,

1996 21 374184, at *4. An ALJ does the residual functional capacity assessment

separately between Steps 3 and 4 if the ALJ finds that the claimant does not have an

impairment that meets or equals a listed impairment. § 404.1520a(d)(3). The paragraph B

severity ratings are not functional limitation findings, which are required for a residual

functional capacity assessment and require a more detailed assessment than the paragraph

B ratings. SSR 96-8p, 1996 2l 374184, at *4; Vigil v. Colvin,

(10th

Cir. 2015). Therefore, contrary to Mr. Wiggin’s argument, the ALJ’s paragraph B

moderate limitation finding is not a functional capacity finding for purposes of the

residual functional capacity assessment, and he has not shown any error in the ALJ’s

consideration of the paragraph B finding.

C. Residual functional capacity assessment

A claimant’s “residual functional capacity is the most [the claimant] can still do

despite [his] limitations.”

. The ALJ found that:

31 Tr. at 26. 10 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift, carry, push and pull twenty pounds occasionally and ten pounds frequently; he can stand and walk for six hours in an eight hour workday; he can sit for six hours in an eight-hour workday with normal breaks; he can occasionally climb stairs; he can occasionally climb ladders, ropes or scaffolds; he can occasionally perform all of the postural maneuvers (with occasional balance further defined as needing to avoid all narrow, slippery or erratic moving surfaces); he should avoid concentrated exposure to vibrations and hazards such as dangerous machinery and unprotected heights; and he can respond appropriately to infrequent changes in the work setting and take appropriate precautions for normal hazards in the workplace.32

Mr. Wiggin argues that the ALJ did not consider his difficulty in regulating his emotions

in the residual functional capacity assessment. He further argues that if that limitation had

been considered it might have resulted in finding that he was disabled because the

vocational expert testified that if a person were off task for more than ten percent of the

work day there would be no jobs available.

Contrary to Mr. Wiggin’s argument, the ALJ addressed his difficulty in regulating

his emotions for purposes of assessing his residual functional capacity. The ALJ credited

Dr. Gustavson’s opinion that Mr. Wiggin was “unable to consistently regulate his

emotions due to irritability, fatigue, poor sleep and resulting poor attendance.” The ALJ

noted Mr. Wiggin’s social interactions and other activities as evidence that his fatigue,

one of the cited causes of his difficulty in regulating his emotions, was not as severe as

32 Tr. at 26. 11 Mr. Wiggin reported.33 The ALJ also incorporated the limitation from Dr. Jacobson’s

opinion that he could only respond appropriately to infrequent changes in the work

setting to address the limitation found by Dr. Gustavson. Mr. Wiggin provides no

contrary opinion or other evidence in the record to show that his difficulties with

regulating his emotions either would not be adequately addressed by limiting his

exposure to changes in the work setting or would cause him to be off task while

working.34 As such, Mr. Wiggin has not shown that the ALJ’s residual functional

capacity assessment was incorrect.

The residual functional capacity assessment is supported by substantial evidence

in the record.

Conclusion

33 In his reply, Mr. Wiggin asserts that the Acting Commissioner relied on “post-hoc rationalizations” to support the ALJ’s residual functional capacity assessment. Doc. no. 9, at 2. He is mistaken. A post-hoc rationalization is a rationale offered on review that was not included in the decision. See, e.g., Amanda I. v. Kijakazi,

, at *4 (D. Me. Feb. 9, 2023); McDonald v. Kijakazi,

, at *6, n.4 (D.N.H. Dec. 19, 2022). He states that the ALJ and the Acting Commissioner provided the same rationale, which is not a post-hoc rationalization by the Acting Commissioner. 34 Mr. Wiggin bears the burden to show that he is disabled within the meaning of the Social Security Act. Seavey,

. 12 For these reasons, the court denies Mr. Wiggin’s motion to reverse35 and grants the

Acting Commissioner’s motion to affirm.36 The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

______________________ Joseph N. Laplante United States District Judge

Dated: July 14, 2023

cc: Michael L. Henry, Esq. Janine Gawryl, Esq.

35 Doc. no. 5. 36 Doc. no. 8.

13