Rouleau v . Apfel, SSA CV-98-589-JD 01/28/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Joseph Paul Rouleau
v. Civil N o . 98-589-JD
Opinion N o . 2000 DNH 024
Kenneth S . Apfel,
Commissioner of Social Security
O R D E R
Pursuant to 42 U.S.C. § 405(g), Joseph Paul Rouleau moves to
reverse the decision of the Commissioner denying him social
security disability benefits (document n o . 1 4 ) . The
Administrative Law Judge (“ALJ”) found that Rouleau had a severe
impairment, a seizure disorder, within his eligibility period,
but that because he was able to perform some jobs at the light
exertional level, he was not disabled as defined in the Social
Security Act. The Commissioner moves to affirm (document n o .
16).
Background
I. Procedural History
Rouleau’s eligibility period for disability insurance
benefits began on January 2 , 1989, and ended on June 3 0 , 1994.
On January 9, 1996, Rouleau applied for disability benefits based
on alleged impairments of post-traumatic stress disorder (PTSD),
chronic back pain, seizures caused by head injury, memory lapses,
and sleep disorders. His claim was denied initially and on
reconsideration. An administrative hearing was held on July 9,
1997, where Rouleau and a vocational expert presented testimony.
The ALJ issued an order denying benefits on August 1 5 , 1997.
II. Facts1
Rouleau underwent cranial surgery in 1969 after receiving a
shrapnel wound. In 1989, Rouleau received treatment for a
chronic cranial plate infection. A physical examination revealed
otherwise normal findings. In 1990, Rouleau consulted a
neurologist about seizures and headaches. His speech and
language were normal and there was no clear weakness in motion.
The neurologist diagnosed Rouleau with a seizure disorder under
poor control, based on Rouleau’s complaints of his condition.
The neurologist also noted that Rouleau’s levels of Dilantin were
sub-therapeutic.
In late 1991 and early 1992, Rouleau complained of back and
leg pain and vision problems, and began physical therapy. In May
of 1992, x-rays showed mild spondylolisthesis (displacement of
vertebra) and a CT scan revealed a mild bulging disc margin and
1
The factual information is taken from the parties’ joint
statement of material facts.
2
degenerative changes in the sacroiliac joint. The medical
records note that Rouleau reported practicing karate. Rouleau
continued to complain of back and groin pain through the summer
of 1992.
In September of 1992, Rouleau consulted a physician for back
and groin pain he experienced while performing karate. His
lumbar motion and straight leg raising was normal. Muscle groups
and sensation were also normal. Rouleau was diagnosed with nerve
root syndrome due to foraminal stenosis and was advised that he
could continue with karate as long as he did not use strong force
or feel increased pain.
In January of 1993, Rouleau underwent an electroencephalogram that revealed no brain abnormality. His condition
was noted as “much improved.” Rouleau’s limitations on motion,
including back motion, were described as mild.
A state medical consultant reviewed Rouleau’s medical
records in 1996 in connection with this application for
disability benefits. The consultant reported his medical
conclusions and determined that Rouleau suffered from severe
impairments but could lift and/or carry 10 pounds frequently and
20 pounds occasionally. The consultant also recommended that
Rouleau avoid working around machinery or at heights. The
consultant did not identify any other functional limitations.
3
Another state physician reviewed these findings and concurred
with them.2
Standard of Review
Federal law empowers the court “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.” 42
U.S.C.A. § 405(g) (West Supp. 1999). The court must uphold a
denial of social security disability benefits unless the
Commissioner’s decision is based on legal or factual error. See
Manso-Pizarro v . Secretary of Health & Human Servs.,
76 F.3d 1 5 ,
16 (1st Cir. 1996) (citing Sullivan v . Hudson,
490 U.S. 877, 885
(1989)). The Commissioner’s factual findings are conclusive if
based on substantial evidence in the record. See
id.
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v . Perales,
402 U.S. 389, 401 (1971) (quotation
omitted). The court must uphold the Commissioner’s decision,
2
Although additional later medical records are summarized in
the joint statement of facts, those records are not pertinent to
Rouleau’s application as they pertain to his condition more than
one year after his covered period expired and do not include
retrospective diagnoses relevant to his condition on or before
June 3 0 , 1994. See 42 U.S.C.A. § 423(d)(1)(A); see, e.g.,
Marcotte v . Callahan,
992 F. Supp. 485, 491 (D.N.H. 1997).
4
“even if the record arguably could justify a different
conclusion, so long as it is supported by substantial evidence.”
Tsarelka v . Secretary of Health & Human Servs., 842 F.2d 529, 535
(1st Cir. 1988).
Discussion
Under the Social Security Act, one form of disability is the
“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 12 months.” 42 U.S.C.A. §
423(d)(1)(A) (West Supp. 1999). An individual is found to be
under a disability only if “his physical or mental impairment or
impairments are of such severity that he is not only unable to do
his 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 . . . .”
42 U.S.C.A. §
423(d)(2)(A) (West Supp. 1999).
The ALJ is required to follow a sequential evaluation
process when determining if a claimant is disabled. See 20
C.F.R. § 404.1520 (1997). The ALJ must determine (1) whether the
claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination
of impairments which significantly limit his physical or mental
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capacity to perform basic work-related functions; (3) whether the
impairment(s) are equivalent to a specific listed impairment; (4)
whether the claimant’s impairment(s) prevent him from performing
work of the sort he has done in the past; (5) whether the
impairment(s) prevent the claimant from doing other work, given
the claimant’s age, education, past work experience and residual
functioning capacity. See 20 C.F.R. § 404.1520 (1997). At the
fifth step of this process, the Commissioner bears the burden of
showing that there are jobs in the economy that the claimant can
perform. See Heggarty v . Sullivan,
947 F.2d 990, 995 (1st Cir.
1991).
In this case, the ALJ found that Rouleau suffered from a
severe impairment, a seizure disorder with migraine headaches and
impaired memory, that was not equivalent to a listed impairment.3
He found that Rouleau was unable to perform the type of work he
performed prior to his impairment, but that he could perform
certain unskilled light duty jobs. Rouleau argues that the court
should reverse the ALJ’s order because the ALJ erred at the fifth
step in two ways. First, the ALJ posed an improper hypothetical
question to the vocational expert. Second, the ALJ erred in
3
The ALJ found that Rouleau did not suffer from a severe
impairment due to back pain, vision problems, or post-traumatic
stress disorder.
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finding Rouleau not fully credible, and therefore gave
insufficient weight to Rouleau’s subjective complaints.
I. Hypothetical to Vocational Expert
“A vocational expert’s opinion may serve as significant
evidence, but only if her opinion was elicited with an accurate
hypothetical based on significant record evidence.” Marcotte v .
Callahan, 992 F. Supp. 485, 493 (D.N.H. 1997) (citing Arocho v .
Secretary of Health & Human Servs.,
670 F.2d 374, 375 (1st Cir.
1982)). The hypothetical cannot omit a significant functional
limitation. See Rose v . Shalala,
34 F.3d 1 3 , 19 (1st Cir. 1994).
Rouleau argues that the ALJ erred by posing a hypothetical that
presumed he could perform light duty work.4 Rouleau claims that
4
The ALJ posed two hypothetical questions to the vocational
expert. In the first one, after noting Rouleau’s age and work
history, he added:
I’m going to assume for the purpose of framing my
question that the claimant has the exertional ability
to engage in light work, that is I’m going to assume he
can lift 20 lbs., 10 lbs. occasionally. He can stand
for up to six hours in an eight-hour day and sit for up
to two hours in an eight-hour day . . . [a]lternating
both of those, sitting and standing. Imposed on that
are certain limitations. I’m going to assume that he
has limitations from seizure disorder which prevent him
from working around machinery, working at heights,
working with vibratory tools.
7
the ALJ improperly based this presumption on the opinion of a
state agency medical consultant who did not examine him, and that
the ALJ ignored Rouleau’s own testimony about his loss of memory
and concentration.
A non-examining physician’s assessment of a claimant’s
exertional impairments can constitute substantial evidence to
support a determination of functional ability. See Berrios Lopez
v . Secretary of Health & Human Servs., 951 F.2d 427, 431-32 (1st
(R. at 66-67.) The expert testified that such a claimant would
be able to perform certain unskilled light duty jobs. The ALJ
then posed a second hypothetical:
Now, assume the same vocational factors and the same
functional limitations identified previously, and the
functional limitations were the limitations imposed on
a person that would have a seizure disorder. I want
you to assume further that based on the testified
memory impairment and confusion and the forgetfulness
. . . that Mr. Rouleau is unable to engage in complex
tasks, that he is unable to meet high productivity
goals, that he cannot work at an intense pace, and that
he might require supervision for up to one-third of a
day, that contact with the public should be infrequent
and occasional. Considering the vocational factors,
and by that I mean the age, the education and the past
work experience, and the functional limitations now,
can such an individual perform any of the . . . jobs
that you identified in my previous question.
(R. at 68-69.) The expert replied that Rouleau could still
perform some of the light duty jobs previously identified.
8
Cir. 1991). The non-examining physician’s written medical
conclusions in this case indicate that he took some care to
review Rouleau’s medical files. Rouleau has not suggested that
the physician lacked access to any significant medical records
when he wrote his opinion. The joint statement of facts does not
mention, and Rouleau does not point t o , any medical opinions that
directly contradict, in functional terms, the non-examining
physician’s assessment of Rouleau’s exertional impairments. See
id. at 430. Neither does Rouleau point to objective medical
evidence that contradicts the non-examining physician’s
assessment. Therefore, the ALJ was entitled to rely on the non-examining physician’s assessment to support his conclusion that
Rouleau could perform light work. Accordingly, the ALJ properly
included the ability to do light work in the hypothetical posed
to the vocational expert.
Rouleau also claims that the ALJ ignored his testimony about
the limitations on his ability to remember and concentrate.
However, the ALJ specifically instructed the vocational expert to
consider this limitation in his second hypothetical. Therefore,
Rouleau has not identified any error on the ALJ’s part. The
court finds that the vocational expert’s testimony constituted
substantial evidence upon which the ALJ was entitled to rely.
9
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II. Credibility Determination
Rouleau also contends that the ALJ erred by finding
Rouleau’s testimony about his condition and his ability to work
only partially credible. It is the ALJ’s responsibility “to
determine issues of credibility and to draw inferences from the
record evidence.” Irlanda Ortiz v . Secretary of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). The ALJ’s credibility
determination is entitled to deference, “especially when
supported by specific findings.” Frustaglia v . Secretary of
Health & Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987).
When determining a claimant’s residual functional capacity,
the ALJ must consider the claimant’s own description of his
physical limitations, including his subjective complaints of
pain, as well as the relevant medical evidence. See 20 C.F.R. §
404.1529 (1997). The ALJ must evaluate the claimant’s subjective
complaints of symptoms by considering, among other factors, the
medication available to treat the condition and the claimant’s
daily activities. See id.; Avery v . Secretary of Health & Human
Servs.,
797 F.2d 1 9 , 29 (1st Cir. 1986).
In his opinion, the ALJ noted that Rouleau was prescribed
Dilantin to treat his seizure disorder and that prior to June 3 0 ,
1994, the Dilantin levels in Rouleau’s body were sub-therapeutic,
indicating that Rouleau was not fully compliant with his
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prescribed course of treatment. Rouleau does not dispute that
his medication levels were sub-therapeutic. The ALJ also noted
that Rouleau reported no side effects from prescribed
medications, and that the single electroencephalogram conducted
in January of 1993 reported normal results. Rouleau does not
dispute these facts either. As for Rouleau’s daily activities,
the ALJ wrote that “[w]hile the claimant testified that his
current daily activities are somewhat limited, he had earlier
reported that he was able to fish, hunt and ride his motorcycle.
He went to town for coffee, cooked, cleaned, helped his wife shop
and played cards and bingo.” (R. at 15.) The record shows that
Rouleau did report these daily activities, and Rouleau does not
now challenge the accuracy or relevance of these reports.5
The ALJ’s opinion indicates that he considered the factors
relevant to Rouleau’s subjective complaints, as well as the
objective medical evidence and reports from Rouleau’s treating
physicians. The ALJ made specific findings from which he
concluded that Rouleau’s testimony was partially credible. The
court will not disturb the ALJ’s credibility determination.
5
See Ex. 4 , Activities of Daily Living (Nov. 16, 1994); Ex.
1 3 , Activities of Daily Living (Jan. 2 1 , 1996).
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Conclusion
For the foregoing reasons, Rouleau’s motion to reverse the
decision of the Commissioner is denied (document n o . 1 4 ) . The
Commissioner’s motion to affirm is granted (document n o . 1 6 ) .
The clerk of the court shall close the case.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
January 2 8 , 2000
cc: Thomas F. McCue, Esquire
David L. Broderick, Esquire
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