Cox v . SSA CV-03-438-SM 06/24/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Tammy L . Cox,
Claimant
v. Civil N o . 03-438-SM
Opinion N o . 2004 DNH 097
Jo Anne B . Barnhart,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant Tammy L . Cox moves
to reverse the Commissioner’s decision denying her application
for disability insurance benefits, or DIB, under Title II of the
Social Security Act,
42 U.S.C. § 423, and for supplemental
security income, or S S I , under Title X V I ,
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 1 5 , 16 (1st Cir. 1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 885 (1989)).
The Commissioner’s findings of fact be supported by
substantial evidence. “The 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 7 2 7 , 730 (2d Cir. 1966)). In turn,
“[s]ubstantial evidence is ‘more than [a] mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
2
adequate to support a conclusion.’” Currier v . Sec’y of HEW, 612
F.2d 5 9 4 , 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 2 1 8 , 222
(1st Cir. 1981)). 1
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 9 ) , which is part of the court’s record. The
facts included in that statement will be referred to as
necessary. The ALJ made the following relevant findings:
4. [Claimant’s] medically determinable impairments do
not meet or medically equal one of the listed
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
impairments in Appendix 1 , Subpart P, Regulation
No. 4.
5. 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.
7. The claimant has the residual functional capacity
to perform sedentary exertional activities, but
for the need to avoid more than occasional
balancing, crouching or crawling. She is unable
to kneel or climb. She is limited from lifting
more than 5 pounds with her right upper extremity,
but using her left upper extremity to assist she
can lift as much as 10-20 pounds occasionally and
up to 10 pounds frequently. She needs to avoid
exposure to fumes, odors, dust and gases and to
poor ventilation.
8. The claimant’s past relevant work as receptionist
did not require the performance of work-related
activities precluded by her residual functional
capacity (20 C.F.R. § §§ 404.1565 and 416.965).
9. The claimant’s medically determinable bilateral
knee pain with degenerative arthritis of the
knees, bursitis of the right shoulder and obesity
do not prevent the claimant from performing her
past relevant work.
(Administrative Transcript (“Tr.”) at 36.) Based upon the
foregoing findings, the ALJ ruled that claimant was not eligible
for DIB or SSI benefits. (Id.)
4
Discussion
According to Cox, the ALJ’s decision should be reversed,
and/or the case remanded, because the ALJ lacked substantial
evidence for: (1) his determination that she was not fully
credible;2 and (2) his residual functional capacity (“RFC”)
determination. The Commissioner disagrees categorically.
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). 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 question presented by this
case is whether the ALJ correctly determined that claimant was
2
Buried in claimant’s credibility argument is a suggestion
that the ALJ erroneously determined, at step three, that her
medically determinable impairments did not meet or equal a listed
impairment. Because that argument is merely suggested rather
than developed, and because it is flatly incorrect, owing to
claimant’s ability to walk for as much as fifteen minutes with no
more than a single cane (Tr. at 5 4 ; 20 C.F.R. § 4 0 4 , Subpart P,
Appendix 1 , 1.00B2b(1)), it merits no consideration.
5
not under a disability within the meaning of the Social Security
statutes and regulations.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability 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. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)
(setting out a similar definition of disability for determining
eligibility for SSI benefits). Moreover,
[a]n individual shall be determined to be under a
disability only if [her] physical or mental impairment
or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot,
considering [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
[she] lives, or whether a specific job vacancy exists
for [her], or whether [she] would be hired if [she]
applied for work. . . .
6
42 U.S.C. § 423(d)(2)(A) (pertaining to DIB benefits); see also
42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard
determining eligibility for SSI benefits).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for either DIB or SSI
benefits, an ALJ is required to employ a five-step process. See
20 U.S.C. §§ 404.1520 (DIB) and 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
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).
7
The claimant bears the burden of proving that she is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v .
Chater,
944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 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 3 7 4 , 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; MedicalVocational Guidelines, 20 C.F.R. p t . 4 0 4 , subpt. P,
App. 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 . 4 0 4 , 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.
§ 200(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 3 4 , 39 (2d Cir. 1996)
(discussing use of Grid when applicant has
nonexertional limitations).
8
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 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,
690 F.2d
5 , 6 (1st Cir. 1982)).
1 . Credibility Determination
According to claimant, the ALJ failed to properly evaluate
her subjective complaints of pain within the framework
established by Avery, the relevant regulations, and Social
Security Ruling (“SSR”) 96-7p.
As noted above, the ALJ found claimant’s allegations
regarding her limitations to be not credible, for reasons set out
in the body of his decision. The ALJ made the following
observations:
9
While D r . Doane provided additional restrictions with
regard to use of the right upper extremity, there is
little medical evidence in [the] file regarding
treatment for the claimant’s complaint of pain in the
right shoulder. There is no evidence that the claimant
has complained of ongoing symptoms to D r . Clingman who,
as an orthopedic specialist, is treating her knee
problems.3 D r . Clingman indicated that the claimant
had unlimited ability to reach (Exhibit 21F, p . 3 ) .
There are no objective tests in [the] file to establish
gross abnormalities of the right shoulder and the
claimant received only minimal care from M r . Jorgensen,
ARNP, in January 2002. D r . Boucher noted, in August
2002, that the claimant’s primary complaint was her
difficulty walking. She acknowledged that she was able
to lift as much as a gallon of milk and there is no
indication that D r . Boucher found the claimant
restricted with regard to use of her upper extremities.
. . . The undersigned has also considered the
claimant’s subjective complaints. While there is
evidence to support her complaints of chronic knee
pain, there is no evidence that she needs to elevate
her legs every 10 minutes as asserted at [the] hearing.
Dr. Clingman indicated only that she needed to stand
and walk “a few steps to stretch her legs” after
sitting. It is also important to note that D r .
Clingman felt the claimant needed to be more motivated
to lose weight as this would reduce some of her knee
pain as well as some of her other complaints (Exhibit
20F). 4
3
Claimant did, however, complain to D r . Clingman of
shoulder pain at least once, as he contemplated, but ultimately
decided against, giving claimant a cortisone shot in her
shoulder.
4
Claimant also argues at some length that the ALJ failed to
properly take her obesity into account. To the contrary, while
he did report D r . Clingman’s opinion regarding claimant’s
obesity, the ALJ also included obesity in his listing of
claimant’s impairments (Tr. at 3 4 , 36) and neither blamed
10
(Tr. at 34-35.) In response to the foregoing, claimant argues
that “[t]he ALJ acknowledged much of the relevant criteria to
consider in weighing a claimant’s subjective complaints but in
writing his decision he did not fully and fairly apply the
criteria to the facts of this case.”
According to SSR 96-7p (61 Fed. Reg. 34483,
1996 WL 362209),
“[t]he reasons for the [ALJ’s] credibility finding must be
grounded in the evidence and articulated in the determination or
decision,” and “[t]he determination or decision must contain
specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” Here, the ALJ’s credibility
determination meets the standard set out in SSR 96-7p.
Regarding claimant’s complaint of disabling shoulder pain,
the ALJ found that report less than fully credible based upon:
claimant for her obesity nor discounted the severity of the other
impairments exacerbated by her obesity.
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(1) a lack of objective medical findings; (2) claimant’s limited
complaints to her doctors about shoulder pain and concomitant
limited treatment history; (3) a physician’s explicit indication
of unlimited upper extremity mobility; and (4) claimant’s own
description of her physical abilities. Regarding claimant’s
testimony that she needed to elevate her legs every ten minutes,
the ALJ found that report less than fully credible based upon:
(1) a lack of any evidence for that claim other than claimant’s
assertion; and (2) a physician’s statement that claimant’s knee
pain could be relieved by standing and walking a few steps.
While claimant objects to the weight the ALJ placed on various
pieces of evidence used to support his conclusion, re-weighing
that evidence is beyond the scope of judicial review in a case
such as this, where the ALJ has conducted the analysis required
by Avery, SSR 96-7p, and relevant regulations. See Irlanda
Ortiz, 955 F.2d at 769 (citations omitted). Accordingly, the
ALJ’s credibility determination provides no basis for reversing
his decision or remanding the case.
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2 . Residual Functional Capacity Determination
Claimant also argues that the ALJ’s determination of her
residual functional capacity (“RFC”) was not supported by
substantial evidence in the record. Specifically, she argues
that “the record demonstrates that she did not have the ability
to sustain work activities 8 hours a day, 5 days a week, week in
and week out at the sedentary exertional level.” She points to
the pain caused by her medical condition, and she relies largely
upon her discussion of the credibility issue.
Claimant’s argument is not persuasive. The ALJ discussed
claimant’s daily living activities in his decision (Tr. at 32)
and gave detailed synopses o f : (1) D r . Meader’s May, 8 , 2002,
state-agency medical record review (Tr. at 3 3 ) ; (2) D r . Boucher’s
August 2 7 , 2002, independent medical examination (Tr. at 3 3 ) ; (3)
Dr. Doane’s March, 7 , 2003, functional capacity assessment (Tr.
at 3 3 ) ; and (4) D r . Clingman’s March, 8 , 2003, functional
capacity assessment (Tr. at 3 3 ) . Moreover, nearly every element
of the ALJ’s RFC determination is consistent with the findings of
both treating physicians, and, in the one area of conflict
between the medical opinions – restrictions on claimant’s use of
13
her right upper extremity – the ALJ adequately explained the
basis for his crediting D r . Clingman over D r . Doane. In sum,
claimant has identified no legally sufficient basis for reversing
the ALJ’s RFC determination or remanding the case for further
consideration of that issue.
Conclusion
For the reasons given, claimant’s motion to reverse the
Commissioner’s decision (document n o . 6 ) is denied and the
Commissioner’s motion for an order affirming her decision
(document n o . 8 ) is 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
June 2 4 , 2004
cc: Leslie H . Johnson, Esq.
David L . Broderick, Esq.
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