UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Glenn R. Young
v. Civil No. 13-cv-551-LM
Opinion No. 2014 DNH 233
Carolyn W. Colvin,
Acting Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Glenn Young moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act,
42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI,
42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, the decision of the Acting Commissioner, as announced by
the Administrative Law Judge (“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)(3) (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) (quoting
Sullivan v. Hudson,
490 U.S. 877, 885 (1989)).
As for the statutory requirement 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
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)). But, “[i]t is the responsibility of the [Commissioner]
to determine issues of credibility and to draw inferences from
2
the record evidence. Indeed, the resolution of conflicts in the
evidence is for the [Commissioner], not the courts.” Irlanda
Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir 1991)
(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). 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,
955 F.2d at 769 (quoting Rodriguez v.
Sec’y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)).
Background
The parties have submitted a Joint Statement of Material
Facts (doc. no. 11). That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Young first applied for DIB and SSI in 2011 at the age of
35. He alleged disability due to, among other conditions, back
and hip pain. Sometime prior to 2008, Young was involved in a
motor-vehicle accident in which he injured his hip. Young
completed the ninth grade of high school and cannot read or
write.
3
Young submitted numerous medical records with his
application, which include the following records of medical
imaging. Young had two x-rays in May of 2008. An x-ray of his
lumbar spine showed no abnormalities and no degenerative
changes. An x-ray of Young’s hip revealed mild calcification of
the hip joint and a small chip fracture. A repeat x-ray of
Young’s left hip in November of 2009 was normal.
Young had two Magnetic Resonance Imaging (“MRI”) studies of
his lumbar spine in 2012. In February, an MRI showed mild
degenerative changes. In November, an MRI revealed minimal
anterior spondylolisthesis,1 mild degenerative disc-space
narrowing, minimal spinal stenosis,2 a mild disc bulge, and
multilevel degenerative facet disease.
Young had an x-ray of his hips in May of 2012. That image
showed no fracture or dislocation and minimal joint-space
narrowing in both hip joints.
1 Spondylolisthesis is defined as “[f]orward movement of the
body of one of the lower lumbar vertebrae on the vertebra below
it, or on the sacrum.” Stedman’s Medical Dictionary 1813 (28th
ed. 2006).
2 Stenosis is defined as “a stricture of any canal or
orifice.” Stedman’s, supra note 1, at 1832.
4
Young’s records also document his complaints of back and
hip pain and various treatments he has received for that pain.
Beginning in 2010, Young was treated at Paincare Center. There,
he received pain medication and epidural steroid injections to
treat both his back and hip pain. In February of 2012, his
Paincare Center treatment provider, Donna Flynn, noted that she
was “unsure why he has so much pain still in light of the recent
normal MRI, despite relatively significant dosages of both long
and short acting meds.” Tr. 817.
Young’s records also document participation in physical
therapy. From December of 2011 to January of 2012 he made eight
visits to a physical therapist. However, Young stopped this
form of treatment because he felt it was not helping him. In a
note connected with these visits, the physical therapist
indicated that Young’s reactions to the therapist touching his
back were consistent with “symptom magnification,” or
overstating his pain symptoms.
Young’s DIB and SSI application was denied in November of
2011 and Young requested a hearing before an ALJ. ALJ Jonathan
Baird conducted a hearing on October 24, 2012. At that hearing
the ALJ took testimony from Young and a vocational expert
(“VE”). Specifically, Young testified that in 2010, his left
side back and hip pain became so severe he could no longer work.
5
Young testified that his left leg felt swollen and numb with
tingling in his left foot. Young testified that he took
meloxicam, methadone, and oxycodone to alleviate his pain, but
that the medications caused stomachaches, nausea, and
constipation.
Young also testified about his daily activities and
residual functional capacity. He described helping his son get
ready for school and walking him to the bus, which is about 30
feet from his house. After helping his son, Young stated that
he needed to take a break to alleviate his pain. He testified
that he could mow his lawn for 20 to 30 minutes and help with
housework such as vacuuming and washing dishes. But Young also
testified that he could no longer play outside with his son,
ride bicycles, ride motorcycles, or work on cars due to his back
pain. He stated that if he did work on cars he could only do so
for 20 to 30 minutes before needing to rest. Young stated that
he could not lift 15 pounds, and if he attempted to lift 10
pounds “it would hurt.” Tr. 56. Young stated that he could
walk for 20 to 30 minutes at a time. Young testified that if he
was offered a full-time job at which he could sit most of the
time, but had the option to change positions, he would try to
work.
6
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairments:
lumbar degenerative disc disease, left hip arthritis,
tinnitus, migraine headaches, and a learning
disability (20 CFR 404.1520(c) and 416.920(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404 Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
. . . .
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a) with
additional limitations. He can occasionally crawl,
stoop, kneel, crouch, and climb ramps or stairs; but
never climb ladders, ropes, or scaffolds. He is
limited to simple and routine tasks. He requires the
ability to alternate between sitting and standing
every thirty minutes. In addition, he cannot
understand, remember, or carry out detailed
instructions.
. . . .
6. The claimant is unable to perform any past
relevant work (20 CFR 404.1565 and 416.965).
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569(a), 416.969, and 416.969(a)).
7
Tr. 11-12, 17. Based on the testimony of the VE, the ALJ found
that Young could work as a bench worker, an assembler inspector,
or an inserter/packer.
Discussion
According to Young, the ALJ’s decision should be reversed,
and the case remanded, because the ALJ erred in finding that
Young’s subjective complaints of pain were not credible.
A. The Legal Framework
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 sole question in
this case is whether Young is disabled.
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.
8
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 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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work. . . .
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 for
determining eligibility for SSI benefits).
To decide 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 C.F.R. §§
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] can still perform past
relevant work, then the application is denied; 5) if
the [claimant], given [his] residual functional
capacity, education, work experience, and age, is
9
unable to do any other work, the application is
granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
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)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the [claimant] or other witness;
and (3) the [claimant]’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)).
B. Young’s Argument
Young argues that the ALJ’s credibility assessment was not
supported by substantial evidence because: (1) his complaints of
pain are substantiated by objective medical evidence; and (2)
the ALJ mischaracterized his testimony about his daily
activities. The court addresses each of these arguments in
turn.
10
According to Social Security Ruling (“SSR”) 96-7p, “an
individual’s statement(s) about his or her symptoms is not in
itself enough to establish the existence of a physical or mental
impairment or that the individual is disabled.” 1996 WL 374186,
at *2. “A symptom is an individual’s own description of his or
her physical or mental impairment(s).”
Id.
When “symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness,” id., are alleged, SSR 96-7p
prescribes
a specific staged inquiry that consists of the
following questions, in the following order:
(1) does the claimant have an underlying impairment
that could produce the symptoms he or she claims?; (2)
if so, are the claimant’s statements about his or her
symptoms substantiated by objective medical evidence?;
and (3) if not, are the claimant’s statements about
those symptoms credible?
Allard v. Colvin, No. 13-cv-82-JL, 2014 WL 677489, at *2 (D.N.H.
Feb. 21, 2014) (citation omitted); Valiquette v. Astrue,
498 F.
Supp. 2d 424, 434 (D. Mass. 2007) (“dissonance between the
objective medical assessments and the plaintiff’s description of
the level of pain he was experiencing . . . merely poses the
question of the credibility of his subjective complaints, it
does not answer it”).
If an adjudicator reaches the third step in the inquiry,
i.e., the credibility question, he or she must also consider
additional evidence, such as:
11
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
3. Factors that precipitate and aggravate the
symptoms;
4. The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, the individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s
functional limitations and restrictions due to pain or
other symptoms.
SSR 96-7p, 1996 WL 374186, at *3. In this circuit, the seven
considerations listed above are commonly referred to as the
Avery factors. However, “[a]s a matter of law, the ALJ is not
required to address all of the Avery factors in his decision.”
Matos v. Astrue,
795 F. Supp. 2d 157, 164 (D. Mass. 2001)
(citing N.L.R.B. v. Beverly Enters.-Mass., Inc.,
174 F.3d 13, 26
(1st Cir. 1999)).
An ALJ’s credibility determination must be supported by
substantial evidence, see Irlanda Oritz, 955 F.2d at 769, and
“is entitled to deference, especially when supported by specific
findings,” Frustaglia v. Sec’y of HHS,
829 F.2d 192, 195 (1st
12
Cir. 1987) (citing Da Rosa v. Sec’y of HHS, 803 F.2d 24, 26
(1986)). That said, an ALJ’s “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.” SSR
96-7p,
1996 WL 374186, at *2 (emphasis added). In other words,
“[i]t is not sufficient for the adjudicator to make a single,
conclusory statement that ‘the individual’s allegations have
been considered’ or that ‘the allegations are (or are not)
credible.’”
Id. To perform a proper discussion and analysis,
the ALJ “must identify what testimony is not credible and what
evidence undermines the claimant’s complaints.” Balaguer v.
Astrue,
880 F. Supp. 2d 258, 268 (D. Mass. 2012) (quoting Bazile
v. Apfel,
113 F. Supp. 2d 181, 187 (D. Mass. 2000); citing
Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1995)).
Here, the court can find no fault with the manner in which
the ALJ evaluated Young’s credibility. The ALJ clearly
identified the statements to which he applied the credibility
analysis. See Weaver v. Astrue, No. 10-cv-340-SM, 2011 WL
2580766, at *6 (D.N.H. May 25, 2011) (“As a starting point for
the following analysis, it is necessary to identify the
13
statement(s) at issue.”). Then, the ALJ answered the first
question of the staged inquiry by finding “that [Youngs’s]
medically determinable impairments could reasonably be expected
to cause the alleged symptoms.” Tr. 13.
The ALJ then answered the second question of the staged
inquiry by finding that “[w]hile the claimant continues to
experience some level of pain from his injury, the medical
records do not show that it is disabling.” Tr. 14. To bolster
that finding, the ALJ pointed to several specific pieces of
objective medical evidence including reports that Young’s gait,
or manner of walking, was normal, certain diagnostic medical
imaging that revealed mild degenerative changes and minimal
abnormalities, and straight-leg raise tests that were negative
for pain. Id.
At this step, Young takes issue with the ALJ’s reference to
negative straight-leg raise tests.3 However, the ALJ found that,
3 Young argues that the ALJ’s statement that he “has also
described feeling pain with range of motion of the left hip, but
has been found to have a negative straight leg raise,” Tr. 14,
is not supported by substantial evidence. In support of the
statement, the ALJ cites to five treatment notes in the
administrative record. As Young points out, only two of the
cited records refer to straight-leg raise tests. Further, those
two records document a “normal” test (Exhibit B2F, p. 25-28) and
an “equivocal” test (Exhibit B2F, p. 250-253). However, there
were other, negative, straight leg-raise tests that the ALJ
could have cited, but did not. See, e.g., Tr. 816, 941.
14
in addition to negative straight leg raise tests, there was a
lack of support in the medical evidence based on reports of
Young’s normal gait, x-rays showing mild degenerative changes,
and an MRI that showed minimal abnormalities. Thus, even if the
ALJ erroneously referred to negative straight leg raise tests,
his decision is still supported by substantial evidence.
Second, Young takes issue with the ALJ’s citation to
negative straight-leg raise tests when there are other positive
straight-leg raise tests in the record. Where, as here, there
are conflicts in the objective medical evidence, some of which
support Young’s statements, and others of which do not, “the
resolution of [those conflicts] is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769.
The court “must uphold the [Acting Commissioner’s] conclusion,
even if the record arguably could justify a different
conclusion, so long as it is supported by substantial evidence.”
See Tsarelka,
842 F.2d at 535. As things stand, there is
substantial evidence to support the ALJ’s determination that
Young’s allegations of pain were not substantiated by objective
medical evidence, and that is dispositive.
Having determined Young’s symptoms were not substantiated
by objective medical evidence, the ALJ moved on to the third
step in the staged inquiry and discussed the Avery factors.
15
While the ALJ’s written decision is sparse on detail concerning
his assessment of the Avery factors, the record is clear that
the ALJ explored the Avery factors at the administrative
hearing. Although consideration of the Avery factors in the
ALJ’s written decision is preferable, the court looks to the
entire record to determine whether the ALJ’s credibility finding
is supported by substantial evidence. Frustaglia, 829 F.2d at
195. The factors the ALJ explored in the hearing coupled with
those that he cited in his written decision constitute
substantial evidence to support his credibility finding.4
Next, Young argues that despite the ALJ’s analysis of the
Avery factors, the ALJ’s credibility assessment is flawed
because the ALJ mischaracterized certain statements Young made
at the hearing concerning his activities of daily living.
Although the statements are, by themselves difficult to assess
from the transcript alone, the court will defer to the ALJ’s
interpretation of those statements, as he had the benefit of
observing and interacting with the claimant at the hearing.
At the administrative hearing, the ALJ explored all seven
4
Avery factors. See Tr. 47-48, 51-54, 56. In his written
decision, the ALJ discussed four of the seven Avery factors: (1)
activities of daily living (factor one); (2) the pain
medications Young has taken (factor five); (3) the treatment
Young has received for his pain (factor six); and (4) physical
therapy notes (factor seven). See Tr. 14.
16
Additionally, the statements at issue refer to only one of
the seven Avery factors. “As a matter of law, the ALJ is not
required to address all of the Avery factors in his decision.”
Matos, 795 F. Supp. 2d at 164-65. Thus, even assuming arguendo,
that the ALJ unreasonably interpreted Young’s statements, the
ALJ’s credibility determination still rests on his assessment of
six out of the seven Avery factors. That assessment is
sufficient.
Conclusion
Because the ALJ has committed neither a legal nor factual
error in evaluating Young’s claim, see Manso-Pizarro, 76 F.3d at
16, Young’s motion for an order reversing the Acting
Commissioner’s decision, document no. 8, is denied, and the
Acting Commissioner’s motion for an order affirming her
decision, document no. 10, is granted. The clerk of the court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
November 4, 2014
cc: D. Lance Tillinghast, Esq.
Robert J. Rabuck, Esq.
17
