Howard v. US Social Security Administration, Commissioner
///ORDER granting 15 Motion to Affirm Decision of Commissioner; and denying 13 Motion to Reverse Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David B. Howard,
Case No. 12-cv-497-SM
Opinion No. 2014 DNH 027
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration,
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, David Howard,
moves to reverse or vacate the Commissioner’s decision denying
his application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423 (the
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.
In 2010, claimant filed an application for Disability
Insurance Benefits, alleging that he had been unable to work
since October 31, 2008.
That application was denied and claimant
requested a hearing before an Administrative Law Judge (“ALJ”).
In September of 2011, claimant and his attorney appeared
before an ALJ, who considered claimant’s application de novo.
Four weeks later, the ALJ issued his written decision, concluding
that claimant retained the residual functional capacity to
perform the physical and mental demands of sedentary work,
“except the claimant is limited from performing more than simple,
Admin. Rec. at 37.
limitations precluded him from performing any of his past
relevant work, the ALJ concluded that there was still a
significant number of jobs in the national economy that he could
Id. at 40.
Accordingly, the ALJ determined that
claimant was not disabled, as that term is defined in the Act, at
any time prior to the date of his decision.
Claimant then sought review of the ALJ’s decision by the
Appeals Council, which denied his request for review.
Accordingly, the ALJ’s denial of claimant’s application for
benefits 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.
He then filed a “Motion for Order
Reversing Decision of the Commissioner” (document no. 13).
response, the Commissioner filed a “Motion for Order Affirming
the Decision of the Commissioner” (document no. 15).
motions are pending.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a “Joint Statement of Material Facts” which, because it
is part of the court’s record (document no. 16), need not be
recounted in this opinion.
Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
“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.
See 42 U.S.C. §§ 405(g).
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.”
U.S. 197, 229 (1938).
Consolidated Edison Co. v. NLRB, 305
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 he 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).
The Parties’ Respective Burdens.
An individual seeking Social Security disability 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.”
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.
To satisfy that burden, the claimant must prove, by a
preponderance of the evidence, that his impairment prevents him
from performing his 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 his previous work, the burden shifts to
the Commissioner to show that there are other jobs in the
national economy that he can perform.
See Vazquez v. Secretary
of Health & Human Services, 683 F.2d 1, 2 (1st Cir. 1982).
also 20 C.F.R. § 404.1512(f).
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 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).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm her
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.
Accordingly, he first determined that claimant had
not been engaged in substantial gainful employment since his
alleged onset of disability: October 31, 2008.
Admin. Rec. at
Next, he concluded that claimant suffers from the following
severe impairments: “a disorder of the right knee status post
right ACL repair [in] January 2011, with a second surgery in
August 2011, an adjustment disorder with depression and anxiety,
attention deficit hyperactivity disorder, and a personality
Nevertheless, the ALJ 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.
Rec. at 36.
Next, the ALJ assessed claimant’s residual functional
capacity (“RFC”) and concluded he retained ability to perform the
exertional demands of sedentary work, provided it involves no
more than performing simple, repetitive tasks.1
Admin. Rec. at
In light of those restrictions, the ALJ concluded that
claimant was not capable of returning to any of his prior jobs.
Id. at 39.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform.
the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,
App. 2, tables 1-3 (also known as the “Grid”), as a framework,
the ALJ concluded that, notwithstanding claimant’s exertional and
non-exertional limitations, he is capable of performing work that
exists in substantial numbers in the national economy.
Specifically, he determined that claimant’s “additional
limitations have little or no effect on the occupational base of
unskilled sedentary work.”
Id. at 40.
“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).
concluded that claimant was not “disabled,” as that term is
defined in the Act, through the date of his decision.
This case is complicated somewhat by the fact that claimant
is proceeding pro se - a difficult task, given the complexity of
the administrative regulations and federal case law that govern
judicial review of Social Security benefit decisions.
unfortunately, he has not specifically identified any errors he
believes the ALJ made in reaching the conclusion that he was not,
prior to September 23, 2011, disabled within the meaning of the
See generally Complaint (document no. 1) and Motion for
Order Reversing the Decision fo the Commissioner (document no.
In neither of those single-page documents does claimant
identify any errors - whether legal or factual - that he believes
the ALJ committed.
The Commissioner, to her credit, filed a lengthy and
thorough legal memorandum, in which she addresses the ALJ’s
findings at each of the five analytical steps of the evaluation
And, as to each of those findings, the Commissioner has
explained (with record citations) why it is supported by
The court has reviewed both the ALJ’s
written decision and the Commissioner’s memorandum, and the court
has not identified any apparent legal or factual errors in the
While the court is certainly sympathetic to Mr. Howard’s
position, it cannot act as his lawyer.
At the very least, the
Commissioner could legitimately complain should the court
endeavor to identify, argue, consider, and resolve legal
arguments it has posited.
225, 231-232 (2004).
See generally Pliler v. Ford, 542 U.S.
The court does, however, note that Mr.
Howard (at least arguably) implies that his condition may have
worsened since the ALJ’s decision.
See Claimant’s Motion
(document no. 13) at 1 (“I am no longer able to work due to my
injury and psychological condition.”) (emphasis supplied).
is, then, conceivable that he may have a basis for filing a new
application for benefits - a matter he might consider discussing
with either his former counsel or new counsel.
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant (such as
they are), 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 the ALJ’s
As demonstrated by the Commissioner’s
memorandum, the ALJ’s findings at each of the five steps of the
analytical process are supported by substantial evidence.
The question before this court is not whether it believes
claimant is disabled and entitled to benefits.
question presented is far more narrow: whether there is
substantial evidence in the record to support the ALJ’s decision.
Consequently, while there is certainly substantial
evidence in the record suggesting that claimant suffers from
significant emotional/psychological difficulties, as well as
periodic pain in his surgically repaired right knee and arthritic
left ankle, the existence of such evidence is not sufficient to
undermine the ALJ’s decision, which is also supported by
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
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 13) is denied, and the
Commissioner’s motion to affirm her decision (document no. 15) is
As noted above, if claimant’s condition has
substantially worsened since the date of the ALJ’s decision, he
might consider consulting with counsel about the possibility of
filing a new application for benefits.
The Clerk of the Court shall enter judgment in accordance
with this order and close the case.
Steven J. McAuliffe
United States District Judge
February 10, 2014
David B. Howard, pro se
Robert J. Rabuck, Esq.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?