Newell v. US Social Security Administration, Commissioner

Filing 16

///ORDER denying 10 Motion to Reverse Decision of Commissioner; and granting 13 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Angelia Marie Newell,
Claimant
v.

Case No. 12-cv-480-SM
Opinion No. 2014 DNH 026

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration,
Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Angelia Newell, moves to reverse or vacate the Commissioner’s
decision denying her application for Supplemental Security Income
Benefits under Title XVI of the Social Security Act, 42 U.S.C. §§
1381-1383c (the “Act”).

The Commissioner objects and moves for

an order affirming her decision.

For the reasons discussed below, claimant’s motion is
denied, and the Commissioner’s motion is granted.

Factual Background
I.

Procedural History.
In 2008, claimant filed an application for Supplemental

Security Income (“SSI”), alleging that she had been unable to

work since June 25, 2000.
February 26, 2008.

She subsequently amended that date to

That application was denied and claimant

requested a hearing before an Administrative Law Judge (“ALJ”).
In October of 2009, the ALJ held a hearing and, approximately one
month later, issued a decision in which he concluded that
claimant was not disabled under the Act.

The Decision Review

Board selected claimant’s application for review and, on February
12, 2010, remanded the case to the ALJ for a new hearing and
decision.

The ALJ held a second hearing in May of 2011, at which
claimant, her attorney, and an impartial vocational expert all
appeared.

Approximately two months later, the ALJ issued a new

decision, again finding that claimant was not disabled within the
meaning of the Act.

The Appeals Council denied claimant’s

request for review and the ALJ’s adverse decision became the
final decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by substantial
evidence and seeking a judicial determination that she is
disabled within the meaning of the Act.

Claimant then filed a

“Motion for Order Reversing Decision of the Commissioner”
(document no. 10).

In response, the Commissioner filed a “Motion
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for Order Affirming the Decision of the Commissioner” (document
no. 13).

II.

Those motions are pending.

Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is
part of the court’s record (document no. 15), need not be
recounted in this opinion.

Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review
I.

“Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “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.”

Factual findings and credibility

determinations made by the Commissioner are conclusive if
supported by substantial evidence.
1383(c)(3).

See 42 U.S.C. §§ 405(g),

See also Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991).

Substantial

evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
3

Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938).

It is something less than

a preponderance of the evidence, so the possibility of drawing
two inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by
substantial evidence.

Consolo v. Federal Maritime Comm’n., 383

U.S. 607, 620 (1966).

See also Richardson v. Perales, 402 U.S.

389, 401 (1971).

This court’s review of the ALJ’s decision is, therefore,
both limited and deferential.

The court is not empowered to

consider claimant’s application de novo, nor may it undertake an
independent assessment of whether she is disabled under the Act.
Rather, the court’s inquiry is “limited to determining whether
the ALJ deployed the correct legal standards and found facts upon
the proper quantum of evidence.”
35 (1st Cir. 1999).

Nguyen v. Chater, 172 F.3d 31,

Provided the ALJ’s findings are properly

supported by substantial evidence, the court must sustain those
findings even when there may also be substantial evidence
supporting the contrary position.

See, e.g., Tsarelka v.

Secretary of Health & Human Services, 842 F.2d 529, 535 (1st Cir.
1988); Rodriguez v. Secretary of Health & Human Services, 647
F.2d 218, 222 (1st Cir. 1981).

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II.

The Parties’ Respective Burdens.
An individual seeking SSI benefits is disabled under the Act

if he or she 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).

The Act places a heavy initial burden on the claimant to
establish the existence of a disabling impairment.

See Bowen v.

Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v. Secretary of
Health & Human Services, 944 F.2d 1, 5 (1st Cir. 1991).

To

satisfy that burden, the claimant must prove, by a preponderance
of the evidence, that her impairment prevents her from performing
her former type of work.

See Gray v. Heckler, 760 F.2d 369, 371

(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11 (D.
Mass. 1982).

If the claimant demonstrates an inability to

perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform.

See Vazquez v. Secretary of Health & Human

Services, 683 F.2d 1, 2 (1st Cir. 1982).
416.912(f).

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See also 20 C.F.R. §

In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience.

See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6
(1st Cir. 1982).

Ultimately, a claimant is disabled 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. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm her
decision.

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Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R.
§ 416.920.

Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since her
alleged onset of disability: February 26, 2008.
10.1

Admin. Rec. at

Next, he concluded that claimant suffers from the following

severe impairments: “morbid obesity; compression fractures T8 to
T12; lordosis/scoliosis of the lumbar spine.”

Id.

Nevertheless,

he determined that those impairments, regardless of whether they
were considered alone or in combination, did not meet or
medically equal one of the impairments listed in Part 404,
Subpart P, Appendix 1.

Id. at 16.

Although the ALJ devoted substantial attention to evidence
concerning claimant’s alleged hemiplegic migraines, he ultimately
determined that “the conclusion that the claimant possibly has
hemiplegic migraines is not supported by objective testing and

1

The ALJ’s decision contains a minor typographical error,
suggesting that the date of claimant’s alleged onset of
disability is February 28, 2008, rather than February 26, 2008.
That error is harmless and appears to stem from discussions
between claimant’s attorney and the ALJ during the October 2,
2009, hearing. See Admin. Rec. at 84-85.
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the physical examinations associated with the condition find that
the claimant’s presentations are unreliable.”
14.

Admin. Rec. at 13-

Accordingly, he concluded claimant’s condition does not

constitute a “medically determinable impairment.”

Id. at 13.

Nevertheless, he went on to conclude that even assuming claimant
does suffer from “a medically determinable impairment of
hemiplegic headache[s], the totality of the record establishes
that the condition is not severe” because “claimant’s headaches
do not significantly limit her ability to perform basic work
activities.”

Id. at 14.

As discussed below, claimant challenges

that finding.

Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
a range of light work.2

In support of that conclusion, the ALJ

2

“RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*2 (July 2, 1996) (citation omitted).
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cited, among other things, the Medical Source Statement from
claimant’s treating orthopedist, Dr. Mark Geppert.

Dr. Geppert

opined that claimant retains the ability to perform a range of
full-time work, in a position that requires frequent sitting, and
only occasional standing and/or walking.
Admin. Rec. at 1553.

Id. at 18.

See also

The ALJ also relied upon the medical

opinions offered by the non-examining medical consultant, Dr.
Joseph Cataldo, who also opined that claimant retains the ability
to perform a range of light work.

Id. at 19.

See also Id. at

1529-36.

Finally, the ALJ noted that claimant had no past relevant
work history and considered whether there were any jobs in the
national economy that she might perform.

Relying upon the

testimony of a vocational expert, the ALJ concluded that,
notwithstanding claimant’s exertional and non-exertional
limitations, she “is capable of making a successful adjustment to
other work that exists in significant numbers in the national
economy.”

Admin. Rec. at 24.

Accordingly, the ALJ concluded

that claimant was not “disabled,” as that term is defined in the
Act, at any time since her alleged onset date.

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Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that he erred by: (1) failing to recognize that her
hemiplegic migraines constitute a “severe impairment,” and (2)
failing to properly consider the effect of her obesity on her
ability to perform physical activities.

I.

Claimant’s Migraine Headaches.
“It is well established in this circuit ‘that the Step 2

severity requirement is . . . to be a de minimus policy, designed
to do no more than screen out groundless claims.’”

Mohammad v.

Astrue, 2011 WL 1706116, at *7 (D.N.H. April 4, 2011) (quoting
McDonald v. Secretary of Health & Human Services, 795 F.2d 1118,
1124 (1st Cir. 1986)).

Given the relatively low threshold

established by the step two inquiry, claimant says the ALJ erred
when he concluded that her alleged hemiplegic migraines do not
constitute a “severe impairment.”

Whether the ALJ did, in fact,

err at step two is a close call - a point on which reasonable
minds could certainly disagree.

But, even assuming he did err,

it is plain from the record that his error was harmless.

At step two of the sequential inquiry, the ALJ supportably
concluded that claimant’s hemiplegic migraines either fail to
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rise to the level of a medically determinable impairment and/or
cause no more than minimal limitations on claimant’s ability to
perform basic work activities.

The administrative record in this

case - including claimant’s voluminous medical records - spans
more than 2,500 pages.

And, the ALJ thoroughly discussed

claimant’s medical history and cited substantial record evidence
in support of his conclusions about her migraines.

See Admin.

Rec. at 11-14 (noting, for example, Dr. Dirksmeier’s opinion that
claimant’s hemiplegic symptoms were “completely unreliable” based
upon claimant’s inconsistent effort during testing (Id. at 444);
Dr. Lallana’s observation that “exam findings are not consistent
with true weakness” (Id. at 1044); and the existence of MRI and
CT scans that reveal no structural pathology that might explain
claimant’s hemiplegic symptoms).

The ALJ also noted the several

references in the record to the likelihood that claimant’s
limitations stem from a somatoform disorder, claimant’s repeated
reports to medical providers of having suffered a “stroke” when
no evidence of such a stroke exists, and references in treatment
records to her “strong history of Munchausen syndrome in the
past.”

See, e.g., Id. at 1057-58.

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Importantly, however, even assuming the ALJ did err at step
two, that error was harmless.

As this court (DiClerico, J.) has

noted:
[A]n error at Step Two will result in reversible error
only if the ALJ concluded the decision at Step Two,
finding no severe impairment. If instead the ALJ
continued through the remaining steps and considered
all of the claimant’s impairments in making those
additional findings, any error at Step Two is harmless.
In contrast, a decision will be reversed if an ALJ errs
by omitting a severe impairment at Step Two and then
also fails to consider the effects of that impairment
in the following steps, leaving the decision without
substantial support in the record.
Syms v. Astrue, 2011 WL 4017870 at *1, 2011 DNH 138 at 3 (D.N.H.
Sept. 8, 2011) (citations and footnote omitted).

See also

Montore v. Astrue, 2012 WL 3583346 at *4, 2012 DNH 131 at 10
(D.N.H. Aug. 20, 2012) (“A Step 2 error is harmless if the ALJ
continued through the remaining steps and considered all of the
claimant’s impairments.”) (citation and internal punctuation
omitted).

Here, it is plain that the ALJ thoroughly considered
claimant’s non-severe impairments - including her migraine
headaches - and discussed each at length in reaching the
conclusion that none adversely affected her residual functional
capacity.

See, e.g., Admin. Rec. at 18 (“While the undersigned,
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upon assessing the claimant’s residual functional capacity, did
take into consideration her non-severe impairments (left shoulder
impairment, headaches, and adjustment disorder), as noted above,
the undersigned finds no evidence supportive of a need for
further reduction of the above-noted functional capacity.”).

See

generally 20 C.F.R. § 416.945(a)(2).

Claimant’s first assertion of error is, therefore, without
merit.

Even if the ALJ did err at step two of the sequential

analysis by failing to recognize her hemiplegic migraine
headaches as a “severe” impairment, that error was harmless
because he took those headaches into account when he subsequently
determined her RFC.

And, that RFC determination is supported by

substantial evidence in the record, including expert medical
opinions, objective medical findings and results of diagnostic
imaging, claimant’s activities of daily living, and the nature
and course of her treatment.

See Admin. Rec. at 17-22.

Finally,

in determining claimant’s RFC, the ALJ gave adequate explanation
for his decision to discount those medical opinions in the record
that suggested claimant’s headaches might impair her ability to
engage in substantial gainful activity.

See, e.g., Id. at 19

(discussing the reasons he afforded little weight to the opinions
of Dr. Alison Baker).
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II.

Claimant’s Obesity.
Next, claimant asserts that the ALJ erred by failing to

properly consider her obesity when determining her ability to
perform physical activities.

As she points out, an ALJ is

required to make an assessment “of the effect obesity has upon
the individual’s ability to perform routine movement and
necessary physical activity within the work environment.”

SSR

02-1P, Titles II and XVI: Evaluation of Obesity, 2002 WL 34686281
at *6 (Sept. 12, 2002).

But, there is certainly adequate

evidence in the record to support the conclusion that the ALJ met
that obligation.

First, at step two, the ALJ concluded that claimant’s
obesity constitutes a severe impairment, Admin. Rec. at 10, and
noted that her pain symptoms are “exacerbated by her morbid
obesity,” id. at 11.

Next, the ALJ took claimant’s obesity into

account when determining her RFC, noting again that her obesity
“certainly aggravates her symptoms,” id. at 18, and recognizing
that her obesity “credibly limit[s] her ability to stand and/or
walk.”

Accordingly, he concluded that claimant was capable of

only “occasional standing and/or walking.”

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Id. at 18.

Moreover, in making his RFC determination, the ALJ also
relied upon the professional medical opinions of claimant’s
treating orthopedist and the non-examining medical consultant both of whom took claimant’s obesity into account in assessing
her ability to perform work-related functions.
18-19.

Admin. Rec. at

See also Id. at 1553-54 (Dr. Geppert’s opinion that

claimant can lift up to 20 pounds occasionally, sit for up to
eight hours per day, stand for up to two hours per day, and walk
for up to one hour per day); Id. at 1529-36 (Dr. Cataldo’s
similar opinions).

As various courts (including this one) have

noted, even when an ALJ fails to specifically discuss a
claimant’s obesity (not the case here), it is sufficient if he or
she relies upon the opinions of medical experts who have taken
the claimant’s obesity into consideration.

See, e.g., Drake v.

Astrue, 443 Fed. Appx. 653, 657 (2d Cir. 2011) (“[W]e agree with
the District Court that the ALJ implicitly factored [claimant’s]
obesity into his RFC determination by relying on medical reports
that repeatedly noted [claimant’s] obesity and provided an
overall assessment of her work-related limitations.”); Skarbek v.
Barnhart, 105 Fed. Appx. 836, 840 (7th Cir. 2004) (“[T]he ALJ
adopted the limitations suggested by the specialists and
reviewing doctors, who were aware of [claimant’s] obesity.
although the ALJ did not explicitly consider [claimant’s]
15

Thus,

obesity, it was factored indirectly into the ALJ’s decision as
part of the doctors’ opinions.”).

See also Rutherford v.

Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005); Benitez v. Astrue,
2011 WL 6778534 at *4 (D.Ma., Dec. 20, 2011); Young v. Astrue,
2011 WL 4340896 at *11-12, 2011 DNH 140 (D.N.H. Sept. 15, 2011).

Here, not only did the ALJ specifically address claimant’s
obesity (and found it constitutes a “severe impairment”), he also
relied upon the expert opinions of medical professionals who had
taken her obesity into account in assessing her ability to
perform work-related activities.

Finally, as the Commission points out, claimant has failed
to identify any additional physical limitations imposed by her
obesity that might call the ALJ’s RFC determination into
question.

See 20 C.F.R. § 416.912(c) (“You must provide evidence

. . . showing how your impairment(s) affects your functioning
during the time you say that you are disabled.”).

See also

O’Dell v. Astrue, 736 F. Supp. 2d 378, 390 (D.N.H. 2010) (“It was
up to [claimant] to specifically allege how his obesity affected
his ability to work during the period in question, and he failed
to meet that burden.”).

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Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that there is substantial evidence in the record
to support the ALJ’s determination that claimant was not disabled
at any time prior to the date of his decision.

Even if the ALJ

erred at step two by failing to recognize claimant’s alleged
hemiplegic migraines as “severe,” that error was harmless since
he went on to consider the effect of those headaches on her
residual functional capacity.

And, the record reveals that the

ALJ gave more than adequate consideration to claimant’s obesity
and its impact on her RFC.

As noted above, the question before this court is not
whether it believes claimant is disabled and entitled to
benefits.

Instead, the question presented is far more narrow:

whether there is substantial evidence in the record to support
the ALJ’s decision.

There is.

Claimant’s lengthy medical history and the treatment she has
received from numerous medical care providers are well documented
in her voluminous medical records.

And, that record certainly

contains substantial evidence suggesting that she has difficulty
17

performing basic work activities.

But, the existence of such

evidence is not sufficient to undermine the ALJ’s lengthy,
thorough, and well-documented adverse disability determination,
which is also supported by substantial evidence.

When

substantial evidence can be marshaled from the record to support
either the claimant’s position or the Commissioner’s decision,
this court is obligated to affirm the Commissioner’s finding of
no disability.

See, e.g., Tsarelka, 842 F.2d at 535 (“[W]e 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.”); Rodriguez, 647 F.2d at 222
(“We must uphold the [Commissioner’s] findings in this case if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support his conclusion.”).

See

also Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)
(“We must uphold the ALJ’s decision where the evidence is
susceptible to more than one rational interpretation.”).

For the foregoing reasons, as well as those set forth in the
Commissioner’s memorandum, the court concludes that the ALJ’s
adverse disability decision was supported by substantial
evidence, despite the existence of evidence in the record that
could support a different conclusion.
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Claimant’s motion to

reverse the decision of the Commissioner (document no. 10) is,
therefore, denied, and the Commissioner’s motion to affirm her
decision (document no. 13) 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
February 10, 2014
cc:

D. Lance Tillinghast, Esq.
Robert J. Rabuck, Esq.

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