UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Pamela Reynolds
v. Civil No. 14-cv-439-LM
Opinion No. 2015 DNH 104
Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Pamela Reynolds moves to
reverse the Acting Commissioner’s decision to deny her
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 [Acting 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 [Acting
Commissioner] to determine issues of credibility and to draw
2
inferences from the record evidence. Indeed, the resolution of
conflicts in the evidence is for the [Acting 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 [Acting 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 the decision of the Acting 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 (document no. 12). That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Reynolds has not worked since October of 2012. Before
that, she had a number of different jobs. Up until 2004, she
was an electronics assembly worker. See Administrative
Transcript (hereinafter “Tr.”) 193.
3
With respect to her physical condition, Reynolds has been
diagnosed with sleep apnea, carpal tunnel syndrome, and
hypothyroidism. Her treatment has included a CPAP mask for
sleep apnea and splints for her carpal tunnel syndrome. With
respect to her mental condition, she has been diagnosed with
depression and mood disorder. Treatment for her mental
conditions has included a variety of medications, individual
counseling, group counseling, and a partial hospital program.
The record includes an assessment of Reynolds’s physical
residual functional capacity,1 made by a non-examining state-
agency physician, Dr. Hugh Fairley. See Tr. 48-50. Dr. Fairley
determined that Reynolds had the capacity to lift and/or carry
20 pounds occasionally and could lift and/or carry 10 pounds
frequently. He also found that she was capable of standing
and/or walking and sitting for about six hours in an eight-hour
workday. With respect to postural activities, Dr. Fairley
opined that Reynolds was able to occasionally climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl.
Finally, he determined that she had no manipulative, visual, or
communicative limitations, and had an unlimited ability to deal
1 “Residual functional capacity,” or “RFC,” is a term of art
that means “the most [a claimant] can still do despite [her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
4
with all environmental situations other than hazards such as
machinery and heights, to which she could tolerate no exposure.
The record also includes documentation of a Psychiatric
Review Technique completed by Dr. Laura Landerman. Dr.
Landerman determined that Reynolds had: (1) mild restrictions of
her activities of daily living; (2) mild difficulties in
maintaining social functioning; (3) mild difficulties in
maintaining concentration, persistence or pace; and (4) no
episodes of decompensation of extended duration. In performing
her assessment, Dr. Landerman gave primary weight to a report by
Dr. Joan Scanlon, which was based upon an examination of
Reynolds.
Dr. Scanlon, in turn, diagnosed Reynolds with dysthymic
disorder,2 panic disorder without agoraphobia, post-traumatic
stress disorder, and pain disorder associated with her general
medical condition. See Tr. 373. As to Reynolds’s level of
functioning, Dr. Scanlon had this to say:
A. Activities of Daily Living: . . . [C]laimant
possesses essential skills of daily living,
exemplified in her prior work as a housekeeper. She
is thereby able to complete household tasks, obtain
needed funds, assist with meal preparation, and wash
dishes. She presents as somewhat limited in this area
due to her mood and level of motivation.
2 “Dysthymia” is a “chronic mood disorder manifested as
depression for most of the day, more days than not . . . .”
Stedman’s Medical Dictionary 602 (28th ed. 2006).
5
B. Social Functioning: . . . [C]laimant has had a long
history of difficulty establishing relationships
dating to her childhood years. However, she related
appropriately to coworkers and supervisors in most
work positions, and thus is not limited in this
domain.
C. Understanding and Remembering Instructions: . . .
[C]laimant is able to understand and remember
locations and work-like procedures, understand and
recall very short and simple instructions, if not more
detailed in nature. She does not present as limited
in this sphere.
D. Concentration and Task Completion: . . . [C]laimant
is able to maintain simple information processing if
not more complex in nature, and maintain persistence
and pace to complete tasks. She does not present as
limited in this domain.
E. Reaction to Stress, Adaptation to Work or Work-Like
Situations: . . . [C]laimant is sufficiently able to
tolerate stresses in the work setting, render simple
decisions, and maintain a schedule. Her limitations
reside in her level of motivation, mood, and physical
constraints.
Tr. 373.
After conducting a 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:
sleep apnea, hypothyroidism, mild hip joint narrowing,
obesity, depression and anxiety (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
6
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 light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except
that she cannot climb ropes/ladders/scaffolds and she
can only occasionally climb remaps/stairs. She is
also limited from more than occasional balancing,
stooping, kneeling, crouching, and crawling. She
needs to avoid all exposure to hazards. Is limited
from more than minimal interaction with the general
public, but she is able to maintain interactions with
co-workers and supervisors.
. . . .
6. The claimant retains the residual functional
capacity to return to her past relevant work as an
electronics assembly worker (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, 404.1569(a), 416.969, and 416.969(a)).
Tr. 12, 14, 16, 18, 19.
Discussion
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
7
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 in this
case is whether Reynolds is under a disability.
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. . . .
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
8
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 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. Barnhart, 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)). Finally,
[i]n assessing a disability claim, the [Acting
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.
9
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. Reynolds’s Arguments
According to Reynolds, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ: (1) erred at
step two by determining that her carpal tunnel syndrome was not
a severe impairment; (2) formulated a residual functional
capacity that did not account for the limiting effects of her
mental impairments; (3) erred at step four by determining that
she was capable of working as an electronics assembler; and (4)
erred at step five by determining that there were other jobs in
the national economy that she could perform. The court is not
persuaded by any of Reynolds’s arguments.
1. Step Two
Reynolds first claims that the ALJ erred at step two of the
sequential evaluation process by failing to find that her carpal
tunnel syndrome was a severe impairment. While Reynolds makes
various arguments concerning the manner in which the ALJ made
her step-two determination,
the court need not inquire into whether [Reynolds’s
carpal tunnel syndrome] is a severe impairment because
“[t]his court has consistently held . . . that an
error in describing a given impairment as non-severe
10
is harmless so long as the ALJ found at least one
severe impairment and progressed to the next step of
the sequential evaluation process.”
Anderson v. Colvin, No. 14-cv-15-LM, 2014 WL 5605124, at *5
(D.N.H. Nov. 4, 2014) (quoting Chabot v. U.S. Soc. Sec. Admin.,
No. 13-cv-126-PB,
2014 WL 2106498, at *9 (D.N.H. May 20, 2014)).
Here, the ALJ found five severe impairments and progressed to
the next step of the sequential evaluation process. Therefore,
her determination that Reynolds’s carpal tunnel syndrome was not
a severe impairment does not warrant a remand.
In addition to claiming that the ALJ erred at step two by
not finding her carpal tunnel syndrome to be a severe
impairment, Reynolds also claims that the ALJ erred by
formulating an RFC that did not include manipulative limitations
resulting from carpal tunnel syndrome. The court cannot agree.
In 2000, after a nerve conduction study, Reynolds received
the following relevant diagnosis: “Mild right median neuropathy
in the carpal tunnel consistent with right carpal tunnel
syndrome.” Tr. 606. In an office note from 2010, resulting
from a follow-up visit for complaints related to Reynolds’s CPAP
mask, nurse Ashley Martin wrote:
Ms. Reynolds also notes that, for the past few
nights, she has had disturbed sleep because she is
waking up around 3 in the morning with numbness and
tingling in her wrists and arms. She says that she
does have a history of carpal tunnel syndrome, and is
currently not using splints.
11
Tr. 400. The notation quoted above appears under the heading
“Subjective.” Neither the diagnosis nor the treatment plan in
Nurse Martin’s office note says anything about carpal tunnel
syndrome. Dr. Fairley did not identify any manipulative
limitations in his physical RFC assessment, presumably because
the office note documenting Reynolds’s 2000 diagnosis of carpal
tunnel syndrome was not placed in the record until after Dr.
Fairley made his assessment. At Reynolds’s hearing, the
following relevant exchange took place:
Q We were talking about the electronics work. Would
you have any problems using your hands now in that
type of work?
A I don’t know because it’s been so long. I don’t
know. I mean, I do have a lot of hand pain. My
fingers keep breaking and it goes into my elbows, the
pain, so.
Tr. 31. With respect to her departure from the electronics
assembly field, Reynolds testified: “The reason I got out of
. . . electronics [in 2004] was because it was fading, so I
decided to try driving the school bus.” Tr. 30. In other
words, Reynolds worked as an electronics assembly worker four
years after her carpal tunnel diagnosis, and did not leave that
occupation because of her carpal tunnel syndrome.
At steps one through four of the sequential evaluation
process, which includes the determination of a claimant’s RFC,
12
the claimant bears the burden of proving her disability. See
Bowen, 482 U.S. at 146; Seavey,
276 F.3d at 5. Here, Reynolds
has produced evidence of a diagnosis of carpal tunnel syndrome,
but no medical opinion evidence of any manipulative limitations
resulting from that diagnosis. Even she is unable to say
whether that condition would prevent her from doing her former
work as an electronics assembler, and she testified that carpal
tunnel syndrome is not what prompted her to leave that
occupation. In short, there is no evidence in the record
linking Reynolds’s carpal tunnel syndrome to any limitation in
her ability to perform work-related activities. Thus, the ALJ
did not err by formulating an RFC that did not include a
manipulative limitation.
2. Residual Functional Capacity
Reynolds next argues that the ALJ formulated an RFC that
did not adequately account for her mental impairments.
Specifically, she criticizes the ALJ for: (1) ignoring the
opinions of Dr. Kathy Brann and Dr. Ivan Boyadzhiev that her
mental impairments rendered her unable to work; and (2) failing
to adequately address several of the limitations identified by
Dr. Scanlon. She characterizes both those errors as
impermissible substitutions of the ALJ’s lay opinions for
opinions of medical experts. Reynolds is mistaken.
13
Dr. Brann. In a progress note dated August 18, 2011, under
the general heading “Subjective” and the sub-heading “Mental
Health Problem,” Dr. Brann wrote: “The degree of incapacity that
she is experiencing as a consequence of her illness is mild.
Sequelae3 of the illness include homelessness, an inability to
work and harmed interpersonal relations.” Tr. 229. Reynolds
claims that the ALJ committed reversible error by ignoring Dr.
Brann’s opinion that she was unable to work due to her mental
impairments. However, the statement on which Reynolds relies
appears under the heading “Subjective,” which means that it is
Dr. Brann’s report of Reynolds’s report to him, not Dr. Brann’s
medical opinion. As Judge Barbadoro has explained:
The fact that [the claimant] told [her doctor] that
she was experiencing pain and the fact that he
recorded her complaints in his notes does not convert
her subjective complaints of pain into medical
opinion, thus entitling it to some measure of
deference. See 20 C.F.R. §§ 404.1527(a)(2),
404.1527(d), 416.927(a)(2), 416.927(d). Likewise,
[the claimant’s] subjective complaints are not
entitled to greater weight simply because they appear
in her physician’s notes. See Craig v. Chater, 76
F.3d 585, 590 n.2 (4th Cir. 1996) (noting that
“[t]here is nothing objective about a doctor saying,
without more, ‘I observed my patient telling me that
she was in pain.”’).
3 “Sequela” is defined as “an aftereffect of disease or
injury.” Webster’s Third New International Dictionary 2071
(1993).
14
Ford v. Barnhart, No. 04-CV-194-PB, 2005 WL 1593476, at *8
(D.N.H. July 7, 2005). Based upon Ford, the ALJ’s handling of
the subjective complaint recorded in Dr. Brann’s progress note
does not warrant a remand.
Dr. Boyadzhiev. In a progress note dated September 29,
2011, under the general heading “Subjective” and the sub-heading
“Mental Health Problem,” Dr. Boyadzhiev wrote: “The degree of
incapacity that she is experiencing as a consequence of her
illness is moderate. Sequelae of the illness include harmed
interpersonal relations and an inability to work.” Tr. 222.
Reynolds claims that the ALJ committed reversible error by
ignoring Dr. Boyadzhiev’s opinion that she was unable to work
due to her mental impairments. That claim fails for the same
reasons as Reynolds’s claim regarding the subjective complaint
recorded in Dr. Brann’s progress note.
Dr. Scanlon. Based upon her psychological examination of
Reynolds, Dr. Scanlon gave opinions on Reynolds’s abilities in
five different areas of functioning, including the following:
[C]laimant is able to understand and remember
locations and work-like procedures, understand and
recall very short and simple instructions, if not more
detailed in nature. She does not present as limited
in this sphere.
[C]laimant is able to maintain simple information
processing if not more complex in nature, and maintain
persistence and pace to complete tasks. She does not
present as limited in this domain.
15
Tr. 373 (emphasis added). Reynolds claims that the ALJ
committed reversible error by crafting an RFC that did not
include limitations based upon the emphasized portions of Dr.
Scanlon’s opinion. But, each of the “limitations” that Reynolds
criticizes the ALJ for excluding from her RFC is followed by Dr.
Scanlon’s opinion that Reynolds did not present as limited in
the relevant area of functioning. Accordingly, the ALJ’s
decision not to include additional limitations related to
instruction handling and information processing is supported by
substantial evidence.
Reynolds also makes an argument concerning Dr. Scanlon’s
opinion of her ability to perform the activities of daily
living. With regard to that area of functioning, Dr. Scanlon
found:
[C]laimant possesses essential skills of daily living,
exemplified in her prior work as a housekeeper. She
is thereby able to complete household tasks, obtain
needed funds, assist with meal preparation, and wash
dishes. She presents as somewhat limited in this area
due to her mood and level of motivation.
Tr. 373. The ALJ, in turn made the following finding concerning
that area of functioning:
In activities of daily living, the claimant has [a]
mild restriction. The claimant has reported that she
manages all personal care without assistance. She is
also able to cook, clean, do laundry, drive, shop and
handle her personal finances.
16
Tr. 15 (emphasis in the original). This is Reynolds’s argument
against the ALJ’s finding:
[W]hile Dr. Scanlon found limitations in the ability
to perform activities of daily living, the ALJ did not
accept those limitations, instead finding only mild
limitations in that area.
Mot. to Reverse (doc. no. 9) 8. Notwithstanding Reynolds’s
argument to the contrary, the ALJ’s finding tracks Dr. Scanlon’s
finding rather closely. Consequently, the court can discern no
basis for Reynold’s claim and no error in the ALJ’s assessment
of Reynolds’s capacity to perform the activities of daily
living.
In sum, the ALJ’s handling of Dr. Scanlon’s opinion does
not warrant a remand.
3. Steps Four and Five
Reynolds claims that the ALJ made several different errors
at steps four and five of the sequential evaluation process.
She claims that the ALJ committed reversible error at step four
by: (1) failing to conduct her analysis in conformance with
Social Security Rulings 82-61 and 82-62; and (2) relying upon a
flawed RFC. Because the court has already determined that the
ALJ committed no error in determining Reynolds’s RFC, all that
remains is Reynolds’s claim that the ALJ’s step-four finding was
procedurally deficient.
17
“At step four the initial burden is on the claimant to show
that she can no longer perform her former work because of her
impairments.” Manso-Pizarro, 76 F.3d at 17 (citing Santiago v.
Sec’y of HHS, 944 F.2d 1, 5 (1st Cir. 1991)). Specifically, the
claimant must: (1) “produce relevant evidence of the physical
and mental demands of her prior work,” Santiago,
944 F.2d at 5;
and (2) “describe those impairments [that] preclude[ ] the
performance of [that] particular job,”
id. If the claimant is
able to do so, then “the ALJ must compare the physical and
mental demands of that past work with current functional
capacity.”
Id. (citing
20 C.F.R. § 404.1560(b)).
Reynolds has not met her initial burden. She argues that
she “expressly testified that she can no longer perform the
electronics assembly occupation due to hand, finger, and elbow
pain.” Mot. to Reverse (doc. no. 9) 12. But her actual
testimony was that she did not know whether she would be able to
use her hands to do that kind of work. See Tr. 31. She did
testify to having some pain in her hands, see id., but she said
nothing about the effects of that pain on her ability to use her
hands, and she said nothing about the physical demands of
electronics assembly. Thus, she has shown that she once
received a diagnosis of carpal tunnel syndrome, and that she
suffers some amount of hand pain, but she has not shown that her
18
medical condition or its symptoms would prevent her from
performing her former work as an electronics assembler.
Similarly, she testified that he has difficulty interacting with
people, but that testimony, without more, is insufficient to
meet her burden of showing that she can no longer perform her
former work.
Because Reynolds has not met her initial burden at step
four, the ALJ was under no obligation to perform the analysis
Reynolds criticizes her for failing to perform. Accordingly,
the ALJ did not commit a step-four error that warrants a remand.
Finally, as the ALJ committed no error in determining that
Reynolds was capable of performing her former work in
electronics assembly, the court has no need to address
Reynolds’s claim that the ALJ erred in making her alternative
step-five determination that there were other jobs in the
national economy that Reynolds could perform.
Conclusion
Because the ALJ committed neither a legal nor a factual
error in evaluating Reynolds’s claim and determining that she
was not disabled, see Manso-Pizarro, 76 F.3d at 16, her motion
for an order reversing the Acting Commissioner’s decision,
document no. 9, is denied, and the Acting Commissioner’s motion
for an order affirming her decision, document no. 11, is
19
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
May 22, 2015
cc: Penelope E. Gronbeck, Esq.
Karen B. Fitzmaurice, Esq.
T. David Plourde, Esq.
20
