Lincourt v. US Social Security Administration, Commissioner
Filing
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THIS ENTRY REPLACES DOCUMENT NO. 15. List of counsel corrected on page 15.///ORDER denying 11 Claimant's Motion to Reverse Decision of Commissioner; and granting 12 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Wade Armand Lincourt,
Claimant
v.
Case No. 13-cv-343-SM
Opinion No. 2014 DNH 199
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), Wade
Lincourt moves to reverse or vacate the Acting Commissioner’s
decisions denying his applications for Social Security Disability
Insurance Benefits, Supplemental Security Income, and Child’s
Disability Benefits.
1383c.
See 42 U.S.C. §§ 402(d), 423, and 1381-
The Acting Commissioner objects and moves for an order
affirming her decisions.
For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.
Factual Background
I.
Procedural History.
In the spring of 2010, claimant filed applications for
Disability Insurance Benefits (“DIB”), Supplemental Security
Income (“SSI”), and Child’s Disability Benefits (“CDB”), alleging
a disability onset date of August 15, 2008, at which time he was
19 years old.
Those applications were denied and claimant
requested a hearing before an Administrative Law Judge (“ALJ”).
In August of 2011, claimant appeared before an ALJ, who
considered his applications de novo.
Two weeks later, the ALJ
issued her written decision, concluding that claimant was not
disabled, as that term is defined in the Act.
The Appeals
Council denied claimant’s request for review.
But, in December
of 2011, the ALJ notified claimant that she was reopening her
decision so claimant’s medical record might be more fully
developed.
Letters requesting updated medical records were sent
to James DeJohn, M.D., and Salmon Falls Family Healthcare.
Dr.
DeJohn responded that claimant was no longer a patient at his
practice and there were no new medical records to provide.
Admin. Rec. at 393.
Salmon Falls Family Healthcare produced
medical records from an office visit in April, 2011 (though those
records provided no support for claimant’s assertion of
disability).
Id. at 394-98.
In March of 2012, a different ALJ held a new hearing, at
which claimant and his mother appeared and testified.
Shortly
thereafter, the ALJ issued two decisions: one finding that
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claimant was not disabled with respect to his SSI and DIB claims
(Amin. Rec. at 429-41), and one finding that he was not disabled
with respect to his CDB claim (Admin. Rec. at 16-27).
The
appeals council again denied claimant’s request for review and
the ALJ’s adverse decisions became the final decisions of the
Acting Commissioner, subject to judicial review.
Subsequently,
claimant filed a timely action in this court, asserting that the
ALJ’s decisions are not supported by substantial evidence.
Claimant then filed a “Motion for Order Reversing Decision of the
Commissioner” (document no. 11).
In response, the Acting
Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 12).
Those motions are
pending.
II.
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. 14), need not be
recounted in this opinion.
Those facts relevant to the
disposition of this matter are discussed as appropriate.
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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.”
Co. v. NLRB, 305 U.S. 197, 229 (1938).
Consolidated Edison
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).
II.
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
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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.”
§ 423(d)(1)(A).
See also 42 U.S.C. § 1382c(a)(3).
42 U.S.C.
Eligibility
for Child’s Disability Benefits adds the requirement that the
disability must have begun before claimant attained the age of
22.
42 U.S.C. § 402(d)(1)(B).
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 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, in light of his age, education, and prior work
experience.
See Vazquez v. Secretary of Health & Human Services,
683 F.2d 1, 2 (1st Cir. 1982).
See also 20 C.F.R. §§ 404.1512(f)
and 416.912(f).
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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).
See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
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step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920.
U.S. 20, 24, (2003).
See generally Barnhart v. Thomas, 540
Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: August 15, 2008.
Next, he
concluded that claimant suffers from (and has, since before the
age of 22, suffered from) the following severe impairments:
“attention deficit hyperactivity disorder and a pervasive
developmental disorder not otherwise specified.”
19, 432.
Admin. Rec. at
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.
Admin.
Rec. at 22, 435.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform “a full range of work at
all exertional levels,” subject only to the restriction that
“social interaction should be no more than occasional and then
only on brief, superficial matters” and “work duties should not
require interaction with the general public.”
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Id. at 23, 436.1
“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
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He then observed that while claimant has no past relevant work
experience, “the evidence strongly supports [the conclusion] that
the claimant is very capable of performing within his residual
functional capacity.”
Id. at 26, 439.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform.
Relying upon
the testimony given by a vocational expert in claimant’s earlier
hearing, the ALJ concluded that, considering claimant’s age,
education, and residual functional capacity, “there are jobs in
significant numbers in the national economy that claimant can
perform.”
Id. at 439.
See also Id. at 26 (concluding that,
prior to turning 22, claimant had the RFC to perform jobs that
exist in significant numbers in the national economy).
Consequently, the ALJ concluded that claimant was not “disabled,”
as that term is defined in the Act, prior to reaching the age of
22, id. at 27, or through the date of his decision (March 30,
2012), id. at 441.
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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Discussion
Claimant challenges the ALJ’s decision on grounds that it is
not supported by substantial evidence.
Specifically, he says the
hypothetical question posed to the vocational expert fails to
account for all of his non-exertional limitations.
That
hypothetical posited that claimant:
had no physical limitations, but is able to remember,
understand and carry out both simple and complex
instructions without special supervision; can maintain
concentration, persistence and pace throughout a
typical workday and workweek; is able to accept
instructions, ask simple questions and request help;
can respond appropriately to supervisory criticism and
to changes in the workplace; however, work duties
should not require interaction with the general public;
can work in the vicinity of coworkers, but social
interaction should be no more than occasional and then
only brief, superficial matters.
Admin. Rec. at 421.
In response, the vocational expert opined
that an individual with those limitations could work in “a large
number of occupations,” including courier, office helper,
cleaner/janitor, and hand packer - jobs that, when combined,
represent approximately 1.3 million jobs in the national economy.
The vocational expert testified that those jobs are
“representative examples of a very large base of jobs” that a
person with the limitations posed in the hypothetical could
successfully perform.
Id. at 422.
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But, says claimant, that hypothetical fails to address his
difficulty in thinking on his feet and dealing with unfamiliar or
rapidly changing situations, his limited ability to interact
appropriately with others, his deficits in long-term focus, and
his inability to manage funds for his own benefit.
Claimant’s Memorandum (document no. 11-1) at 5.
See
For example,
claimant points to the opinions of Craig Stenslie, Ph.D., who
noted findings consistent with a diagnosis of Asperger’s disorder
and opined that claimant has “significant difficulty thinking on
his feet and dealing with novel and unfamiliar or rapidly
changing situations.”
Admin. Rec. at 297.
But, the various isolated opinions offered by Dr. Stenslie
and relied upon by claimant do not support a finding of
disability, nor do they undermine the validity of the
hypothetical question posed to the vocational expert.
In fact,
in a summary of his findings, Dr. Stenslie concluded that:
In my opinion, [claimant] shows an adequate and average
range level of basic intelligence and is almost
certainly capable of learning basic vocational skills
in a number of employment areas, both language-based
and visually-based. In my opinion, he is very likely
capable of learning the basic skills and knowledge base
regarding being an electrician, electronics worker, or
an oil burner technician or the like. In any job
situation, he will be capable of adequate work in
situations that are familiar, routine, and/or generally
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limited in terms of how much variation or emergencytype situations can arise.
Psychological Evaluation, Admin. Rec. at 297.
Similarly, the isolated opinions of Michael Schneider,
Psy.D., identified by claimant do not undermine the ALJ’s adverse
disability determinations or the hypothetical question that was
posed to the vocational expert.
While claimant points to the
fact that Dr. Schneider noted that he suffers from “moderately
limited” abilities in the realms of “social interaction” and
“adaptation,” Dr. Schneider concluded that claimant does not have
any disabling impairments:
Despite the claimant’s impairment [a pervasive
developmental disorder and ADHD], he retains the
ability to understand, remember and carry out even
complex instructions for extended periods without
special supervision. He is able to maintain adequate
attention for these kinds of instructions and complete
a normal work week. In an environment where he is in a
somewhat socially isolated workstation and where the
supervisory criticism is not overly critical of his
performance, he is able to interact appropriately with
peers and supervisors. Under these conditions, he is
able to accommodate to changes in a work setting.
Id. at 315.
Those opinions are not inconsistent with the
opinions of Thomas Lynch, Ph.D., who met with, and evaluated,
claimant in June of 2010.
See Admin. Rec. at 332-39.
Nor are
they inconsistent with the opinions of Edward Martin, Ph.D., who
completed a Psychiatric Review Technique (id. at 340-53), as well
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as a Mental RFC Assessment (id. at 354-56).
Dr. Martin opined
that:
Despite impairments, Mr. Lincourt is able to remember
locations and work-like procedures, and to understand,
recall, and carry out instructions without special
supervision. He is able to pay attention and to
maintain concentration for extended periods. He is
able to adhere to a regular schedule and to maintain
attendance within customary expectations. He is able
to complete a normal (8 hour) work-day and (40 hour)
work-week without an unreasonable number of
interruptions from psychologically based symptoms. He
is able to ask simple questions or to request help. He
is able to accept instructions and to respond
appropriately to supervisory criticism and to changes
in the work situation. Due to the impact of his
pervasive disorder and personality traits, he is not
able to consistently interact in an effective manner
with co-workers or the general public.
Admin. Rec. at 356.
Given the medical evidence of record, it is plain that the
ALJ’s hypothetical question to the vocational expert and, indeed,
the ALJ’s adverse disability decision itself, are supported by
substantial evidence.
In both crafting the hypothetical question
and considering claimant’s assertions of disability, the ALJ
properly (and supportably) drew from the opinions of Dr.
Schneider (Admin. Rec. at 299-315), Dr. Stenslie (id. at 293-98),
and Dr. Martin (id. at 340-56).
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Conclusion
This court’s review of the ALJ’s decision is 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 proper 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.
Such is the nature of judicial
review of disability benefit determinations.
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).
Here, the ALJ’s adverse disability decision is supported by
substantial evidence.
Consequently, while there is certainly
substantial evidence in the record demonstrating that claimant
suffers from ADHD and has been diagnosed with a pervasive
developmental disorder, the existence of such evidence is not
sufficient to undermine the ALJ’s decision that those impairments
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do not render claimant “disabled” within the meaning of the
Social Security Act.
Having carefully reviewed the administrative record
(including the testimony of the vocational expert) and the
arguments advanced by both the Acting 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 reaching the age of 22, nor was he
disabled prior to the date of the ALJ’s decision.
Both the
hypothetical question presented to the vocational expert, and the
ALJ’s adverse disability decision are well-reasoned and wellsupported by substantial documentary evidence.
For the foregoing reasons, as well as those set forth in the
Acting Commissioner’s memorandum, claimant’s motion to reverse
the decision of the Commissioner (document no. 11) is denied, and
the Acting Commissioner’s motion to affirm her decision (document
no. 12) 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
September 23, 2014
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cc:
Christopher G. Roundy, Esq.
Robert J. Rabuck, Esq.
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