Daly v SSA

                    UNITED STATES DISTRICT COURT
                     DISTRICT OF NEW HAMPSHIRE

John Richard Daly

       v.                                  Civil No. 16-cv-179-JL
                                           Opinion No. 

Nancy A. Berryhill, Acting
Commissioner, Social Security
Administration

                      CORRECTED ORDER ON APPEAL

       John Richard Daly appeals the Social Security

Administration’s (“SSA”) denial of his application for

disability and supplemental security benefits.      An

Administrative Law Judge (“ALJ”) found that Daly suffered from

the following severe impairments:     asymptomatic human

immunodeficiency virus (HIV), chronic obstructive pulmonary

disease (COPD), coronary artery disease, and right coronary

artery status post stent insertion.    The ALJ also found that

Daly suffered from several non-severe impairments:       neck pain,

kidney disease, hyperlipidemia and depression.      The ALJ

ultimately found that Daly was not disabled within the meaning

of the Social Security Act because he has sufficient residual

functional capacity (“RFC”) to perform, with some restrictions,

his past relevant work as a convenience store clerk, medical

records clerk, ticket agent or telephone representative.1      See 42


1   Administrative Record (“Admin. R.”) at 11-21.
U.S.C. § 423(d)(2)(A).     The SSA Appeals Council subsequently

denied Daly’s request for review of the ALJ’s decision,

rendering the ALJ’s decision final.2    Daly timely appealed to

this court, pursuant to 

(g).     In due course, Daly

moved to reverse the SSA’s decision or, alternatively to remand

it for further consideration.3    The Acting Commissioner moved to

affirm the denial of benefits.4

        Daly argues that the ALJ’s RFC finding was based on an

improper weighing of medical evidence.    After consideration of

the parties’ arguments and the administrative record, the court

finds the record evidence sufficient to support the ALJ’s

decision.    Therefore, the Acting Commissioner’s motion is

granted and Daly’s is denied.


I.    Standard of Review

       The court’s review of the SSA’s final decision “is limited

to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.”     Ward v.

Comm’r of Soc. Sec., 

 (1st Cir. 2000).       The

ALJ’s decision will be upheld if it is supported by substantial


2   Admin. R. at 1-3.
3   Doc. no. 8.
4   Doc. no. 11.
evidence, that is, “such evidence as a reasonable mind might

accept as adequate to support a conclusion.”     Richardson v.

Perales, 

 (1971) (quotations omitted).     This is

less evidence than a preponderance but “more than a mere

scintilla.”    Id.; Consolo v. Fed. Mar. Comm’n, 

(1966).    The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial

evidence.    Consolo, 

.   Accordingly, the ALJ’s

resolution of evidentiary conflicts must be upheld if supported

by substantial evidence, even if contrary results are

supportable.    Rodriguez Pagan v. Sec’y of Health & Human Servs.,

 (1st Cir. 1987).    The court next turns to the

ALJ’s decision.


II.    Background5

       In analyzing Daly’s benefit application, the ALJ invoked

the required process.    See 

.   First, she

concluded that Daly had not engaged in substantial work activity

after the alleged onset of his disability on January 21, 2013.6



5 The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (doc. no. 10) is incorporated
by reference. See L.R. 9.1(d).
6   Admin. R. at 13.
Next, the ALJ determined that Daly suffered from several severe

impairments:     asymptomatic human immunodeficiency virus (HIV),

chronic obstructive pulmonary disease (COPD), coronary artery

disease, and right coronary artery status post stent insertion.7

See 

(c).     At the third step, the ALJ

concluded that Daly’s impairments –– either individually or

collectively -- did not meet or “medically equal” one of the

listed impairments in the Social Security regulations.8       See 

(d), 404.1525, 404.1526.     The ALJ next found

that Daly had the RFC to perform light work, with several

limitations:     he can occasionally climb ramps and stairs, but

never climb ladders, ropes and scaffolds; he can frequently

stoop and crouch, and can occasionally crawl; he should avoid

exposure to extreme heat, moderate humidity and moderate

respiratory irritants; he needs to be within 50 yards of a

bathroom; he needs the option to change between sitting and

standing for 1-2 minutes every 30 minutes in the immediate

vicinity of his workstation.9    See 

(b) and

416.967(b).



7   Id. at 13-14.
8   Id. at 16-17.
9   Id. at 17.
       Finally, at step four, the ALJ found that Daly could

perform his past relevant work as a convenience store clerk,

medical record clerk, ticket agent, or telephone representative,

none of which would be precluded by the limitations in his RFC.

The ALJ accordingly found that Daly was not disabled, with the

meaning of the Social Security Act.    See 

(d).


III. Analysis

       Daly argues that, in formulating the RFC, the ALJ did not

adequately consider the physical limitations created by COPD,

his heart impairment, the need to frequently use the bathroom

due to side effects from his HIV medication, as well as

limitations created by depression and obsessive compulsive

disorder.    The court finds, however, that the record adequately

supports the ALJ’s consideration of these issues.


A.    COPD

       The ALJ recognized that the record contained evidence of

Daly’s COPD, observing that a May 2012 study showed a moderately

severe defect.10   However, the ALJ also noted that Daly’s use of

a bronchodilator improved his condition.11   Moreover, in February



10   Id. at 19.
11   Id. at 19, 534.
2014, Dr. Buono, one of Daly’s treating physicians, reported

that Daly’s COPD had been well-managed with occasional albuterol

use.12   His COPD was also well-controlled and stable several

months later, at which time Dr. Buono noted that Daly had been

using an inhaler when needed.13    Based on these observations, the

ALJ included in Daly’s RFC a restriction to only moderate

exposure to humidity and respiratory irritants and complete

avoidance of extreme heat.14    In this appeal, Daly points to his

testimony that the COPD left him exhausted and reiterates the

fact that a pulmonary function test revealed the condition,15 a

fact which, as previously noted, the ALJ considered.    As for

Daly’s testimony, the ALJ found that his statements concerning

his symptoms were “not entirely credible” given the contrast

between his testimony and the medical record.16    Daly has not

challenged the ALJ’s credibility determination.    See Irlanda

Ortiz v. Sec’y of Health & Human Servs., 

 (1st




12   Id. at 19, 448.
13   Id. at 19-20, 529.
14   Id. at 20.
15   Plaintiff’s Motion (doc. no. 8-1) at 3.
16   AR at 18
Cir. 1991) (“It is the responsibility of the Secretary to

determine issues of credibility . . . .”).


B.    Cardiac disease

       The ALJ noted that in 2008 Daly had been diagnosed with

coronary artery disease, had a stent placed in his right

coronary artery, and had undergone repeat angioplasties.17    The

ALJ cited subsequent record evidence showing “significant[]

recover[y],” with little additional symptomology.18    While Daly

reported occasional shortness of breath and chest pain with

activity to his cardiologist in January 2013, he related to Dr.

Buono a year later that a recent visit to his cardiologist

showed no acute concerns over his heart condition.19    The ALJ

further noted that positive reports continued into 2014:     stress

test reports were negative; Daly reported that he was able to go

hiking; and finally, an August 2014 cardiac examination revealed

a regular heart rate and rhythm.20    On appeal, Daly notes only

that his cardiac condition required hospitalization in 2011.21


17   Id.
18   Id. at 19.
19   Id.
20   Id.
21   Plaintiff's Motion (doc. no. 8-1) at 3.
The court finds no error in the ALJ’s weighing of the record

evidence regarding Daly’s cardiac issues.


C.    HIV and medication side-effects

       Daly testified that he was diagnosed with HIV more than 25

years ago and that side effects from medication have resulted in

frequent episodes of diarrhea which would cause him to use the

bathroom four to six times during a normal work shift and

prevent him from working.22    The ALJ accounted for this testimony

by including the limitation in Daly’s RFC assessment that he be

within 50 yards of a bathroom.23   As the ALJ noted, however, in

an August 2014 visit to his infectious disease specialist

(roughly two months prior to his hearing testimony), Daly

provided a negative history for diarrhea and denied any adverse

reactions to his HIV medication.24      In addition, the ALJ gave

“great consideration” to the treatment notes of Dr. Buono

(Daly’s primary care physician), to whom Daly reported “no

changes in bowel habits” in February and March of 2014.25      It was

well within the ALJ’s purview to resolve the conflict between


22   AR at 18, 48-49, 59-60.
23   Id. at 17.
24   Id. at 517, 519.
25   Id. at 20, 532, 534.
Daly’s testimony and the medical record.    See Irlanda Ortiz, 

 (“Indeed, the resolution of conflicts in the

evidence is for the Secretary, not the courts.”) (citing

Rodriguez v. Sec'y of Health & Human Servs., 

(1st Cir. 1981)).


D.    Mental health

       Daly argues that the ALJ underplayed his mental health

impairments because she placed too much weight on the opinions

of state agency psychologist Laura Landerman, Ph.D. and

consultative psychiatrist Edward Drummond, M.D.,26 neither of

whom examined Daly after 2013.    Dr. Landerman opined that Daly’s

mental impairments resulted only in mild restrictions.    Dr.

Drummond found that Daly had moderate mental limitations but

could perform significant mental functions.    Instead, Daly

argues, the ALJ should have given great weight to the opinion of

Randall O’Brien, LICSW, the therapist with who treated Daly in

2014.    O’Brien opined that Daly’s mental and physical

limitations prevent him from working.27

       The ALJ supportably gave O’Brien's opinion little weight

because his opinion on Daly’s ability to work was an issue


26   Id. at 14-15.
27   Id. at 539-540.
“reserved to the Commissioner.”    See Coppola v. Colvin, 

 (observing that opinion that claimant is “disabled” is

an opinion on an issue reserved to the Commissioner and is not

entitled to controlling weight or special significance); see

also, 

(d), 416.927(d).

       Moreover, the ALJ correctly observed that O’Brien was not

an “acceptable medical source” and therefore not a “treating

source” whose opinions must ordinarily be given controlling

weight.28   Labrecque v. Colvin, 

; 

, 416.913(d)(1) (defining a “treating source” as, inter

alia, an “acceptable medical source” and excluding therapists).

While it would have been improper for the ALJ to ignore

O’Brien’s opinion entirely, see Alcantara v. Astrue, 

 (1st Cir. 2007), the ALJ was entitled to give

the opinion “little weight,” as he did here.

       Daly also argues that Drs. Landerman and Drummond’s

opinions could not constitute substantial evidence to support

the ALJ’s RFC determination because later evidence -- O’Brien’s

opinion -- supported a finding that Daly was disabled.    It is

true that under some circumstances, an opinion that is based on

review of only part of the record cannot provide substantial



28   Id. at 15.
evidence to support the ALJ’s residual functional capacity

finding.    See Alcantara, 

.   But that rubric

only applies “if other evidence, not reviewed, supports the

claimant’s limitations.”    McGowen v. Colvin, 

, 15-

16. (citing Alcantara, 

).      Here, as noted,

the ALJ reviewed, discussed, and supportably weighed the O’Brien

opinion, finding that, in addition to the shortcomings listed

above, it was “inconsistent with the objective findings”29

contained in the record, and thus does not support Daly’s

claimed limitations.


IV.    Conclusion

       The court finds that the ALJ’s consideration of Daly’s

physical and mental impairments were supported by substantial

evidence.    While Daly asserts that the ALJ erred in finding that

he could return to his past relevant work because of his

limitations, this is little more than a restatement of his

argument that the medical evidence was improperly evaluated, an

argument the court has already rejected.    The ALJ presented the

limitations he supportably found to the vocational expert, who

testified that Daly could return to his past work as a ticket

agent or telephone representative in the manner he performed it,


29   Id. at 15.
or as a medical records clerk or convenience store clerk as

defined in the Dictionary of Occupational Titles.30    As such, the

plaintiff has failed to meet his burden of demonstrating that

his impairments prevent him from performing his former type of

work.    Gray v. Heckler, 

 (1st Cir. 1985).

       Accordingly, the Acting Commissioner’s motion to affirm31 is

GRANTED and the claimant’s motion to reverse or remand32 is

DENIED.    The clerk shall enter judgment accordingly and close

the case.


       SO ORDERED.


                                 ____________________________
                                 Joseph N. Laplante
                                 United States District Judge

Dated:    April 28, 2017

cc:    John A. Wolkowski, Esq.
       Robert J. Rabuck, AUSA




30   AR at 64-68.
31   Doc. no. 11.
32   Doc. No. 8.