Kalman v. SSA CV-03-022-M 04/20/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mary Lou Kalman,
f/k/a Mary Lou Bugyi,
Claimant
v. Civil No. 03-022-M
Opinion No. 2004 DNH 070
Jo Anne B. Barhnart,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Mary Lou Kalman moves to
reverse the Commissioner's decision denying her application for
supplemental security income, or SSI, under Title XVI of the
Social Security Act,
42 U.S.C. § 1382. The Commissioner, in
turn, moves for an order affirming her decision. For the reasons
given below, the decision of the ALJ is affirmed.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also
42 U.S.C. § 1383(c)(c) (establishing §
405(g) as the standard of review for SSI decisions). However,
the court "must uphold a denial of social security . . . benefits
unless 'the [Commissioner] has committed a legal or factual error
in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of
HHS,
76 F.3d 15, 16 (1st Cir. 1996) (guoting Sullivan v. Hudson,
490 U.S. 877, 885 (1989) ) .
As for the statutory reguirement that the Commissioner's
findings of fact be supported by substantial evidence, "[t]he
substantial evidence test applies not only to findings of basic
evidentiary facts, but also to inferences and conclusions drawn
from such facts." Alexandrou v. Sullivan, 764 F. Supp. 916, 917-
18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730
(2d Cir. 1966)). In turn, "[s]ubstantial evidence is 'more than
[a] mere scintilla. It means such relevant evidence as a
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reasonable mind might accept as adequate to support a
conclusion.'" Currier v. Sec'y of HEW, 612 F.2d 594, 597 (1st
Cir. 1980) (quoting Richardson v. Perales,
402 U.S. 389, 401
(1971)). Finally, when determining whether a decision of the
Commissioner is supported by substantial evidence, the court must
"review[] the evidence in the record as a whole." Irlanda Ortiz
v. Sec'y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v. Sec'y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)) .1
Background
The parties have submitted a Joint Statement of Material
Facts (document no. 15), which is part of the court's record.
The facts included in that statement are not recited here, en
masse, but will be referred to as necessary.
1 "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, 955 F.2d at 769 (citations omitted). Moreover, the court
"must uphold the [Commissioner's] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence." Tsarelka v. Sec'y of HHS,
842 F .2d 529, 535 (1st Cir. 1988).
3
In the proceeding that gave rise to this appeal, the ALJ
posed the following hypothetical guestion to the Vocational
Expert ("VE"):
I'm going to ask you some guestions taking into account
different pieces of information, but if we (INAUDIBLE)
worker (INAUDIBLE) high school eguivalency, and having
done work both at the entry level and the skilled
level, if we are looking at (INAUDIBLE) instruction
(INAUDIBLE) if we are looking at situations where an
individual (INAUDIBLE) interaction with other people
and by that I mean more than one or two people at one
time (INAUDIBLE) be effectively on a one-on-one basis
(INAUDIBLE) setting, and perhaps the job is not
reguired over the shoulder close supervision, now
looking at the types of jobs that she has performed, do
you feel with these limitations any of these jobs could
still be done?
(Administrative Transcript ("Tr.") at 285-86.) In response, the
VE listed five jobs (storage area clerk, packager, small parts
assembler, housekeeper, and companion) that claimant would be
able to perform with the limitations stated in the ALJ's
hypothetical guestion. At the conclusion of his decision, the
ALJ made the following relevant findings:
4. The undersigned finds the claimant's allegations
regarding her limitations are not totally credible
for the reasons set forth in the body of the
decision.
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6. The claimant has the residual functional capacity
to lift at least 50 pounds occasionally and up to
25 pounds frequently consistent with medium
exertional activity, but for the need for no more
than minimal interaction with others and she is
limited to performing simple instructions.
11. The claimant has the residual functional capacity
to perform a significant range of medium work (20
CFR § 416.967).
12. Although the claimant's exertional limitations do
not allow her to perform the full range of medium
work, using Medical-Vocational Rule 201.27, Table
No. 1 as a framework for decision-making, there
are a significant number of jobs in the national
economy that she could perform. Examples of such
jobs include work as storage area clerk, packager,
small parts assembler, housekeeper and companion.
(Tr. at 250.) Based upon the foregoing findings, the ALJ ruled
that claimant was not eligible for SSI benefits. (Id.)
Discussion
According to claimant, the ALJ's decision should be
reversed, and the case remanded, because the ALJ: (1) erroneously
found claimant's subjective allegations to be not fully credible;
(2) made a residual functional capacity assessment that was not
supported by substantial evidence in the record; and (3) based
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his decision on a legally insufficient hypothetical question to
the Vocational Expert. Claimant also argues that the case should
be remanded because the Commissioner has failed to provide an
adequate transcript of the hearing before the ALJ.
To be eligible for supplemental security income, a person
must be aged, blind, or disabled, and must meet certain
requirements pertaining to income and assets. 42 U.S.C. §
1382(a). The principal issue in this case is whether the ALJ
correctly determined that claimant was not disabled because she
retained the residual functional capacity to perform jobs
available in the national economy.
For the purpose of determining eligibility for supplemental
security income.
[a]n individual shall be considered to be disabled for
purposes of this subchapter if he is unable to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than 12 months. . . .
42 U.S.C. § 1382c(a) (3) (A) . Moreover,
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For purposes of subparagraph (A), an individual shall
be determined to be under a disability only if his
[her] physical or mental impairment or impairments are
of such severity that he [she] is not only unable to do
his [her] previous work but cannot, considering his
[her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists
in the national economy, regardless of whether such
work exists in the immediate area in which he [she]
lives, or whether a specific job vacancy exists for his
[her], or whether he [she] would be hired if he [she]
applied for work. . . .
42 U.S.C. § 1382c (a) (3) (B) .
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for either DIB or SSI
benefits, an ALJ is reguired to employ a five-step process. See
416.920 (SSI) .
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the "listed" impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant's] "residual functional
capacity" is such that he or she can still perform past
relevant work, then the application is denied; 5) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
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unable to do any other work, the application is
granted.
Seavey v. Barnhard, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker,
530 F. Supp. 808, 810-11) (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step
4 to show that he or she is unable to do past work due
to the significant limitation, the Commissioner then
has the burden at Step 5 of coming forward with
evidence of specific jobs in the national economy that
the [claimant] can still perform. Arocho v. Sec'y of
Health & Human Servs., 670 F.2d 374, 375 (1st Cir.
1982). If the [claimant's] limitations are exclusively
exertional, then the Commissioner can meet her burden
through the use of a chart contained in the Social
Security regulations. 20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P,
A p p . 2, tables 1-3 (2001), cited in 20 C.F.R. §
416.969; Heckler v. Campbell,
461 U.S. 458 (1983). "The
Grid," as it is known, consists of a matrix of the
[claimant's] exertional capacity, age, education, and
work experience. If the facts of the [claimant's]
situation fit within the Grid's categories, the Grid
"directs a conclusion as to whether the individual is
or is not disabled." 20 C.F.R. p t . 404, subpt. P, App.
2, § 200.00(a), cited in 20 C.F.R. § 416.969. However,
if the claimant has nonexertional limitations (such as
mental, sensory, or skin impairments, or environmental
restrictions such as an inability to tolerate dust, id.
§ 2 0 0 (e)) that restrict his [or her] ability to perform
jobs he [or she] would otherwise be capable of
performing, then the Grid is only a "framework to guide
[the] decision," 20 C.F.R. § 416.969a(d) (2001). See
also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)
(discussing use of Grid when applicant has
nonexertional limitations).
Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
In assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) plaintiff's subjective
claims of pain and disability as supported by the
testimony of the plaintiff or other witness; and (3)
the plaintiff's educational background, age, and work
experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec'y of HHS,
797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec'y of HHS,
690 F.2d
5, 6 (1st Cir. 1982)).
I. Credibility
Claimant raises three principal objections to the ALJ's
finding that her allegations concerning her limitations were not
fully credible. First, she offers a seven-point refutation of
the ALJ's credibility discussion. Second, she argues that the
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ALJ "failed to provide a thorough discussion of the medical
evidence that is contained in the record." Third, she contends
that the ALJ failed to follow the evaluative scheme outlined in
Avery v. Secretary of Health & Human Services, 797 F.2d 19 (1st
Cir. 1986,
20 C.F.R. § 416.929, and Social Security Ruling
("SSR") 96-7p. The Commissioner contends that the ALJ's
credibility determination must be upheld because it was supported
by substantial evidence and that the ALJ properly considered the
Avery factors.
In her substantive seven-point refutation of the ALJ's
credibility discussion, claimant correctly recites the factual
bases for the ALJ's conclusion, but draws different inferences
from those same facts. Thus, she asks the court to engage in
precisely the kind of re-weighing of evidence that falls outside
the scope of an appeal such as this. See Irlanda Oritz, 955 F.2d
at 7 69. Moreover, claimant's argument that the ALJ failed to
adeguately discuss the medical evidence is not persuasive. To
the contrary, the ALJ devoted several long paragraphs to
claimant's medical records, discussing, in particular, the
findings and conclusions of claimant's treating psychiatrist. Dr.
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Brenda Planck. As well, the ALJ explained his basis for giving
greater weight to Dr. Planck's observations than those of
claimant's counselor, Ms. Patricia Blakeslee. In sum, the ALJ
has adeguately considered "the evidence in the record as a
whole." Id. Finally, claimant's Avery argument misses the mark
in the same way as her refutation of the ALJ's credibility
determination. The ALJ's decision demonstrates that he
considered the seven factors listed in SSR 96-7p, and claimant
does not suggest that the ALJ failed to do so. That the ALJ drew
different (but reasonable) inferences than claimant draws from
the same evidence does not provide an adeguate basis for reversal
or remand. See
id.
II. Residual Functional Capacity Assessment
According to claimant, the ALJ "attempted to some extent to
address the relevant factors" for determining residual functional
capacity ("RFC"), but his analysis was flawed in the same way as
his credibility determination. As stated above, there are no
grounds for re-weighing the evidence considered by the ALJ.
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Claimant raises several additional objections to the ALJ's
RFC assessment. Specifically, she argues that the ALJ: (1)
erroneously determined that she had the RFC for substantial
gainful activity because he failed to adeguately consider her
freguent limitations in concentration and attention; and (2)
ignored her need to be with people she knew in order to avoid
having panic attacks. The Commissioner contends that: (1) having
a limitation in concentration, even often, is not inconsistent
with having the capacity for unskilled work; and (2) the ALJ did
not ignore her difficulties in interacting with strangers.
Regarding concentration and attention, the ALJ stated, in
the narrative portion of his decision: "the undersigned notes
that the claimant often has limitations with regard to her
ability to sustain attention and concentration, however, she
enjoys reading and is also able to use a computer." (Tr. at
247.) Accordingly, he determined that claimant had the residual
functional capacity to perform simple instructions. In
claimant's view, "[i]t is unclear how [a] limitation to
performing simple instructions eguates to a significant problem
with concentration, etc." Thus, according to claimant, the ALJ's
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formal "RFC finding should have made some reference to [her]
limited concentration and attention" and the omission of any such
reference "makes the ALJ's finding incomplete."
The ALJ's finding is not incomplete. His finding that
claimant was limited to performing only simple instructions was a
logical inference from his narrative discussion of plaintiff's
problems with concentration and attention. And again, while the
evidence might have been weighed differently, substantial
evidence in the record supports the ALJ's finding that
concentration problems did not prevent claimant from performing
all work and that claimant was capable of performing simple
instructions.
Regarding claimant's difficulties in interacting with
strangers, the ALJ stated:
The claimant has asserted that she is unable to perform
activities if she is away from her significant others
yet she was able to leave her family in New Jersey and
move to New Hampshire, establish a relationship with a
new boyfriend and his teen-aged daughter and she is
able to drive at least short distances and shop for at
least short periods.
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(Tr. at 247). Contrary to claimant's argument, the ALJ did not
"totally ignore[] her need to be with other people she knew in
order to avoid having a panic attack." Moreover, in addition to
the evidence cited by the ALJ, the record also documents
claimant's ability to establish personal rapport with the members
of her Dialectical Behavioral Therapy Skills Group and to act on
some of the skills she learned there. (Jt. Statement Mat. Facts
at 12-13.) In short, there is nothing in the ALJ's consideration
of claimant's need to be with people she knew that warrants
reversal or remand; his finding that she had the residual
functional capacity to adapt to work in small group settings is
supported by substantial evidence in the record.
III. Hypothetical Question
According to claimant, the ALJ was not justified in relying
upon the testimony of the VE, and failed to carry his burden at
step five of the seguential evaluation process, because his
hypothetical guestion to the VE failed to include all of
claimant's documented functional limitations. Specifically,
claimant contends that the ALJ's hypothetical guestion did not
include her limitation with regard to sustaining attention and
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concentration. The Commissioner counters by citing Dr.
Schneider's opinion that claimant "could 'perform activities
within a schedule and for the most part, she [could] complete a
normal workday and workweek free from [an] unreasonably high
number of disruptions to pace.'" As already noted, the ALJ took
into account claimant's assertions of difficulties with attention
and concentration. However, based upon the evidence before him,
including his credibility assessment, he reasonably concluded
that those limitations allowed claimant to perform jobs involving
simple instructions.
Because there is a logical connection between the general
area of limitation asserted by claimant (attention and
concentration) and the functional capacity identified by the ALJ
(the ability to follow simple instructions) it is incorrect to
say that the ALJ's hypothetical guestion failed to address
claimant's abilities in the area of attention and concentration.
Rather, he drew a permissible inference, supported by substantial
evidence, from the facts before him. In other words, this is not
a case in which the ALJ found a particular limitation and then
failed to include that limitation in his hypothetical guestion.
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Rather, claimant seeks under this theory the same sort of
impermissible re-weighing of the evidence that forms the basis
for her first two arguments.
IV. Transcript
The transcript of claimant's administrative hearing is not
of high guality, to say the least. A dozen or so spots marked
"INAUDIBLE" would seem to fall within the range of acceptability;
more than 130 such notations is far too many. That said, unless
claimant is prepared to argue - and she does not - that the
second inaudible word in the ALJ's hypothetical guestion was
"complex," or a synonym thereof, rather than "simple," the poor
guality of the transcript provides no basis for remanding this
case. Even with the obvious deficiencies in the transcript, the
administrative record, taken as a whole, discloses substantial
evidence supporting the decision of the ALJ.
Conclusion
For the reasons given, claimant's motion to reverse the
Commissioner's decision (document no. 10) is denied and the
Commissioner's motion affirming her decision (document no. 14) is
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granted. The Clerk of the Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
fteven McAuliffe
"United States District Judge
April 20, 2004
cc: Raymond J. Kelly, Esq.
David L. Broderick, Esq.
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