Brewster v. SSA

Brewster v . SSA                        CV-01-445-M    08/02/02
                    UNITED STATES DISTRICT COURT
                      DISTRICT OF NEW HAMPSHIRE


Gloria J. Brewster,
     Claimant

     v.                                   Civil N o . 01-445-M
                                          Opinion N o . 

Jo Anne B . Barnhart, Commissioner,
Social Security Administration,
     Respondent


                              O R D E R


     Pursuant to 

(g), claimant, Gloria Brewster,

moves to reverse the Commissioner’s decision denying her

applications for Social Security Disability Insurance Benefits

and Supplemental Security Income Payments under Titles II and

XVI, respectively, of the Social Security Act, 

,

1382 (the “Act”).   Respondent objects and moves for an order

affirming her decision.



                          Factual Background

I.   Procedural History

     Claimant filed an application for Supplemental Security

Income Payments on January 1 2 , 2000, and an application for

Disability Insurance Benefits on February 2 8 , 2000, alleging that
on December 3 1 , 1999, she became disabled due to pain and
limitations resulting from fibromyalgia.     The Social Security

Administration denied her application initially and on

reconsideration.



     On September 6, 2001, claimant, her attorney, and a

vocational expert appeared before an Administrative Law Judge

(“ALJ”), who considered her claims de novo. The ALJ issued his

order three weeks later, concluding that claimant retained the

residual functional capacity to perform light work.       Accordingly,

he determined that claimant was not precluded from returning to

her past relevant work as a receptionist and as a data entry

worker, both of which are considered sedentary in nature.



     Claimant then filed this action, asserting that the ALJ’s

decision was not supported by substantial evidence and seeking a

judicial determination that she is disabled within the meaning of

the Act. Subsequently, she filed a “Motion for Order Reversing

the Decision of the Commissioner” (document n o . 8 ) .   The

Commissioner objected and filed a “Motion for an Order Affirming




                                  2
the Decision of the Commissioner” (document n o . 9 ) .   Those

motions are pending.1



II.   Stipulated Facts.

      Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court’s record (document n o . 1 0 ) , need not be

recounted in this opinion.    Those facts relevant to the

disposition of this matter are discussed as appropriate.




      1
           The careful reader will observe that claimant did not
seek review by the Appeals Council before initiating this
proceeding. Ordinarily, then, she would be deemed to have failed
to exhaust available administrative remedies and the court would
lack subject matter jurisdiction over her claims. See, e.g.,
Sims v . Apfel, 

 (2000); 

 and
416.1400. However, although neither party has expressly made
this point in its memorandum or the joint statement of material
facts, claimant was selected for a pilot program under which the
Social Security Administration i s , in “randomly selected cases,”
testing the “elimination of the request for review by the Appeals
Council.” 

 and 416.1466. See also
Transcript at 61 (letter notifying claimant of her selection for
participation in this process). For claimants participating in
the program, an ALJ’s adverse disability determination under
either Title II or Title XVI of the Act can be appealed directly
to federal district court, bypassing the need to seek
intermediate review by the Appeals Council. 

and 416.1466.

                                  3
                          Standard of Review

I.   Properly Supported Factual Findings by the ALJ
     are Entitled to Deference.

     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 of the Commissioner are

conclusive if supported by substantial evidence. See 

(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health and

Human Services, 

 (1st Cir. 1991). 2   Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

See Tsarelka v . Secretary of Health and Human Services, 

 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different


     2
        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 the weight of the evidence,
and 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).

                                  4
conclusion, so long as it is supported by substantial

evidence.”).   See also Gwathney v . Chater, 

, 1045

(8th Cir. 1997) (The court “must consider both evidence that

supports and evidence that detracts from the [Commissioner’s]

decision, but [the court] may not reverse merely because

substantial evidence exists for the opposite decision.”);

Andrews v . Shalala, 

 (9th Cir. 1995) (The

court “must uphold the ALJ’s decision where the evidence is

susceptible to more than one rational interpretation.”).



     In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health and Human Services, 

 7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker, 

 9 , 22 (1st Cir. 1982)).   It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts.”   Irlanda Ortiz, 

(citation omitted).   Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See



                                  5
Frustaglia v . Secretary of Health and Human Services, 

 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health

and Human Services, 

 4 , 26 (1st Cir. 1986)).



II.   The Parties’ Respective Burdens.

      An individual seeking Social Security disability 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 has lasted or can be expected to last for a

continuous period of not less than 12 months.”    

(i)(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 and

Human Services, 

 , 5 (1st Cir. 1991).   To satisfy that

burden, the claimant must prove that her impairment prevents her

from performing her former type of work. See Gray v . Heckler,

 (1st Cir. 1985) (citing Goodermote v . Secretary

of Health and Human Services, 

 , 7 (1st Cir. 1982)).

Nevertheless, the claimant is not required to establish a doubt-



                                 6
free claim.   The initial burden is satisfied by the usual civil

standard: a “preponderance of the evidence.”    See Paone v .

Schweiker, 

 0 8 , 810-11 (D. Mass. 1982).



     In assessing a disability claim, the Commissioner considers

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

medical facts; (2) the claimant’s subjective assertions 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 and Human Services, 

 9 , 23 (1st Cir. 1986);

Goodermote, 

.   Provided the claimant has shown 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.   See Vazquez v . Secretary of Health

and Human Services, 

 , 2 (1st Cir. 1982).   If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger, 

 (1st Cir. 1974); Benko v . Schweiker, 

 9 8 ,

701 (D.N.H. 1982).



                                 7
     When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:


      (1)   whether the claimant is engaged in substantial
            gainful activity;

     (2)    whether the claimant has a severe impairment;

      (3)   whether the impairment meets or equals a listed
            impairment;

      (4)   whether the impairment prevents the claimant from
            performing past relevant w o r k ; and

      (5)   whether the impairment prevents the claimant from
            doing any other w o r k .

.    See also 

 1 6 . 9 2 0 .   Ultimately,

a claimant i s disabled only if h e r :


     physical or mental impairment or impairments are of
     such severity that [s]he is not only unable to do [ h e r ]
     previous work but cannot, considering [her] a g e ,
     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 [s]he l i v e s , or
     whether a specific job vacancy exists for [ h e r ] , or
     whether [s]he would be hired if [s]he applied for w o r k .


4 

(d)(2)(A).   See also 4 2 U.S.C. § 1382c(a)(3)(B).




                                    8
     With those principles in mind, the court reviews claimant’s

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

determination that claimant is not disabled.



                             Discussion

I.   Background - The ALJ’s Findings.

     In concluding that claimant 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. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since December 3 1 , 1999, her alleged onset of disability.    Next,

the ALJ concluded that the medical evidence of record indicates

that the “claimant has fibromyalgia syndrome, an impairment that

is severe within the meaning of the Regulations but not severe

enough to meet or medically equal one of the impairments listed

in Appendix 1 , Subpart P, Regulations N o . 4.”   Transcript at 12. 3


     3
          According to one source on the subject, “the term
‘fibromyalgia’ literally means muscle fiber pain. FM is a
chronic disorder that develops gradually and is long-lasting,
although it may be punctuated by acutely painful episodes.” 6
Attorneys’ Textbook of Medicine, para. 25.00 (3d ed. 1999). That
source goes on to provide that, “[t]he picture of FM often
includes trouble sleeping deeply, headaches, chest pains,

                                  9
      Next, the ALJ assessed claimant’s residual functional

capacity (“RFC”) and concluded that she retained the ability to

perform light work.   

 at 1 3 . Based upon that determination,

the ALJ then concluded that claimant was capable of performing

her past relevant work as a receptionist and as a data entry

worker, both of which are classified as being “sedentary” in

nature.   Consequently, the ALJ held that claimant was not

disabled within the meaning of the Act at any time through the

date of his decision.



II.   Claimant’s “Bilateral Manual Dexterity.”

      In challenging the ALJ’s adverse disability determination,

claimant first alleges that, “under the language of 20 C.F.R.

Part 404 Appendix 2 to Subpart P, section 201.00(h), . . . a

finding of disability should have been ‘appropriate’ as plaintiff

is limited to sedentary work and does not have ‘bilateral manual

dexterity.’”   Claimant’s motion to reverse at 6.   In support of


dizziness, and symptoms of ‘irritable bowel.’ There tend to be
periods of especially severe pain alternating with times of
little or no discomfort. What FM does not d o , despite the longstanding pain, is cause permanent tissue damage or deformity.”

 at para. 25.01. See also Aimee E . Bierman, The Medico-Legal
Enigma of Fibromyalgia: Social Security Disability Determinations
and Subjective Complaints of Pain, 

, 259
(1998)

                                10
that position, claimant points to the Physical Residual

Functional Capacity Assessment prepared by Dr. Burton Nault.    See

Transcript at 239-48.    She also relies upon a statement contained

in the Consultative Examiner’s report of Dr. Christopher Lynch,

which provides claimant “cannot use her hands repetitively or

strenuously.”   Claimant’s argument, however, suffers from several

weaknesses.



     First, her reliance upon the Medical Vocational Guidelines,

Part 404, Appendix 2 to Subpart P (also known as the “Grid”) is

misplaced, since those regulations only come into play at step

five of the sequential analysis, when an ALJ must determine

whether a claimant who cannot perform his or her past relevant

work can, nonetheless, perform other work available in the

national economy.   See 20 C.F.R. Part 404, Subpart P, Appendix 2 ,

section 200.00 (stating that the Grid applies when a claimant “is

not engaging in substantial gainful activity and the individual’s

impairment(s) prevents the performance of his or her vocationally

relevant past work.”).    See also 

 at § 201.00(h), Example 1

(discussing a hypothetical claimant who lacks bilateral manual

dexterity and “can no longer do past work”).    Here, because the



                                 11
ALJ determined that claimant could perform the exertional

requirements of her (sedentary) past relevant work, there was no

need to consult the Grid.



     Moreover, claimant’s selective citations to the record do

not support her claim that she lacks bilateral manual dexterity

or cannot use her hands repetitively or strenuously.     The

language quoted from Dr. Lynch’s consultative report concerning

claimant’s inability to “use her hands repetitively or

strenuously” is actually nothing more than the doctor’s

memorialization of claimant’s complaints to him.    It does not

reflect his expert medical opinion of claimant’s actual

limitations.   See Transcript at 236. In fact, Dr. Lynch

concluded that, although claimant’s fibromyalgia “would

presumably interfere with her ability to perform heavy or

strenuous activities,” it would “not interfere with light

sedentary or clerical activities.”   Id. at 237.



     Finally, claimant’s reliance on D r . Nault’s report is also

misplaced.   Dr. Nault’s opinion that claimant was “able to lift

10 pounds occasionally and even frequently,” transcript at 2 4 8 ,



                                12
is not inconsistent with the ALJ’s conclusion that she retained

the RFC to return to her past relevant work.   Additionally, when

read in full, it is clear that Dr. Nault was of the opinion that

claimant retained, at the very least, the ability to engage in

sedentary work of the sort she performed prior to her alleged

onset date.


    She should be able to stand, ambulate and sit for at
    least six hours out of an eight-hour workday with
    routine breaks in the workplace. She should be able to
    do occasional bending, lifting, crouching and climbing
    of stairs. It would appear that the ADL’s [i.e., the
    activities of daily living] support this level of
    activity. In regard to the claimant’s allegations of
    having limited movement of the hands, this is not
    supported by any objective findings nor even supported
    by the claimant’s ADL’s. Difficulty walking is also
    not established, due to a constantly known good
    ambulatory status. Therefore, it would appear that the
    RFC in the file does adequately address a retained
    functional capacity at this time, being supported
    objectively as well as subjectively.


Transcript at 248 (emphasis supplied).



III. Claimant’s Lack of Medical Treatment Since 1998.

    Next, claimant challenges the ALJ’s conclusion that her

subjective allegations of disabling pain were not entirely

credible.   Specifically, she says that the “ALJ stated in his



                                13
decision that he did not find the Plaintiff credible as ‘she has

not sought medical treatment since 1998 despite her assertion

that she has been disabled by severe pain.’”    Claimant’s motion

to reverse at 6.   She then goes on to point out that she

“testified at the Hearing that she could not afford medical

treatment,” id., and cites judicial authority for the proposition

that if a claimant “cannot afford the prescribed treatment or

medicine, and can find no way to obtain i t , the condition that is

disabling in fact continues to be disabling in law.”    Id. at 7

(citations and internal quotation marks omitted).     Claimant

concludes by asserting that, “it was improper for the

Commissioner to conclude that the claimant is not disabled solely

due to a lack of medical treatment.”    Id. (emphasis supplied).



     Importantly, however, the ALJ discounted claimant’s

testimony based on more than simply the fact that she had not

recently sought medical treatment.     Among other things, the ALJ

observed:


     While the claimant’s subjective assertions of disabling
     pain have been considered, she cannot be accepted as
     fully credible in this regard. She has not sought
     medical treatment since 1998 despite her assertion that
     she has been disabled by severe pain. She does not


                                14
      take pain medication and she remains quite active[,]
      performing household chores, walking[,] reading,
      watching television, visiting with friends, caring for
      her son[,] and working on her computer. Considering
      the nature of the claimant’s symptoms, precipitating
      and aggravating factors, treatment including
      medication, the claimant’s functional restrictions and
      her daily activities, the undersigned concludes that
      the claimant retains the residual functional capacity
      to perform light work.


Transcript at 1 3 . When the ALJ’s observations and conclusions

are read in context and in their entirety, it is plain that he

did not base his credibility determination “solely” on claimant’s

failure to seek medical treatment.    To the contrary, the record

suggests that he considered all relevant factors identified in

Avery, supra, and 

 and 416.929. While the

record contains some countervailing evidence to which claimant

may point, the ALJ’s conclusion in that regard is nonetheless

supported by substantial evidence in the record.



IV.   Social Security Ruling 96-7p.

      Finally, in a related argument, claimant asserts that the

ALJ “erred in failing to follow Social Security Ruling 96-7p when

assessing Claimant’s credibility.”    Claimant’s motion to reverse

at 7 .   Specifically, she says, “the ALJ failed to consider the



                                 15
record as a whole in determining that [claimant] was not fully

credible.”   

   The court disagrees.



    Social Security Ruling 96-7p, entitled “Evaluation of

Symptoms in Disability Claims: Assessing the Credibility of an

Individual’s Statements,” provides that:


     [W]henever the individual’s statements about the
     intensity, persistence, or functionally limiting
     effects of pain or other symptoms are not substantiated
     by objective medical evidence, the adjudicator must
     make a finding on the credibility of the individual’s
     statements based on a consideration of the entire case
     record. This includes the medical signs and laboratory
     findings, the individual’s own statements about the
     symptoms, any statements and other information provided
     by treating or examining physicians or psychologists
     and other persons about the symptoms and how they
     affect the individual, and any other relevant evidence
     in the case record.

 (July 2 , 1996), at *2-3. Here, the record reveals

that the ALJ adequately considered the relevant factors bearing

on claimant’s credibility and his assessment of her credibility

is supported by substantial evidence in the record.



     At the hearing before the ALJ, claimant testified that she

could not “stand or sit for long periods,” transcript at 2 3 , she



                                 16
lacked sufficient dexterity in her fingers to allow her to type,

 she suffers from pain in her hands, legs, knees, feet, neck,

and hips, 

 at 2 4 , she often lacks sufficient concentration to

read or watch 30 minute television shows, and, on one occasion,

she “forgot how to get home . . . [and drove] right by [her] exit

and [she] just kept on driving.”     

 at 3 6 . As noted above, in

assessing the credibility of those statements, the ALJ

considered, among other things, the fact that claimant “does not

take pain medication and she remains quite active performing

household chores, walking[,] reading, watching television,

visiting with friends, caring for her son[,] and working on her

computer.”   Transcript at 1 3 . Moreover, while the Commissioner

concedes that claimant’s fibromyalgia causes her some measure of

pain and limitation, substantial evidence in the record supports

the ALJ’s conclusion that her impairment did not cause the degree

of pain and limitation that she described.



     In the Fall of 1997 (prior to her alleged onset date),

claimant reported that her condition was reasonably stable, she

exercised regularly, including two hours of bicycling every other

day and walking a few miles each day, and that she took only



                                17
Advil to control her pain (as well as an anti-anxiety medication,

Doxepin).   Transcript at 218. In March of 1998, claimant

underwent her final medical examination prior to her alleged

onset date. The examining physician, Dr. Romain, opined that

claimant suffered from fibromyalgia, hand pain, right knee pain,

and tenderness in her foot. He recommended physical therapy,

quadricep hip stretching, icing of her left hip area, and Tylenol

Extra Strength as needed for pain in claimant’s fingers and knee.

. Nothing in Dr. Romain’s report suggests, however,

that claimant’s pain or other effects of fibromyalgia had

rendered her totally disabled.



     In August of 2000, claimant was examined by Christopher

Lynch, M.D.   D r . Lynch noted that there is “clinical evidence to

support the diagnosis of fibromyalgia,” transcript at 2 3 7 , but

concluded that it would not interfere with “light sedentary or

clerical activities.”   

   Subsequently, Dr. Burton Nault, a

state agency physician, completed a Physical Residual Functional

Capacity Assessment of claimant.      Dr. Nault concluded that

claimant retained the residual functional capacity to perform at

least sedentary work. Transcript at 247-48.      A second state



                                 18
agency physician reviewed claimant’s medical records and agreed

with Dr. Nault’s conclusions. 

.



    Finally, in assessing claimant’s credibility, the ALJ

considered the testimony she provided at the hearing.    That

testimony was, however, somewhat inconsistent with the

“Activities of Daily Living Questionnaire” that claimant

completed just a few months earlier.   In that questionnaire,

claimant reported, among other things, that she never had any

problems concentrating and had no difficulty following written or

verbal instructions. Transcript at 106. Those responses were

not consistent with her testimony at the hearing, where she said

her concentration problems prevented her from reading books and

often prevented her from watching (and understanding) even a

thirty minute television program.   Inconsistencies of that sort

certainly lend support to the ALJ’s credibility determination.

See SSR 96-7p at *4 (“One strong indication of the credibility of

an individual’s statements is their consistency, both internally

and with other information in the case record.”).




                               19
     While the medical evidence certainly supports the conclusion

that claimant suffers from fibromyalgia, there is not sufficient

evidence in the record to support claimant’s assertion that her

pain is so severe that it renders her disabled within the meaning

of the Act.   And, more importantly, there is substantial evidence

in the record to support the ALJ’s credibility determination.



                            Conclusion

     Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that the there is substantial evidence in the

record to support the ALJ’s determination that claimant was not

disabled at any time prior to the date of his decision.    The

ALJ’s conclusions regarding claimant’s credibility, as well as

her residual functional capacity, are adequately reasoned and

supported by substantial evidence in the record.



     For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document n o . 8 ) is denied, and the

Commissioner’s motion to affirm her decision (document n o . 9 ) is




                                20
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

August 2 , 2002

cc:   David F. Bander, Esq.
      Ralph Stein, Esq.
      David L. Broderick, Esq.




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