Mohr v. US Social Security Administration, Commissioner

Filing 15

///ORDER denying 12 Motion to Reverse Decision of Commissioner; granting 14 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Pamela Mohr
v.

Civil No. 14-cv-245-JD
Opinion No. 2015 DNH 073

Carolyn Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Pamela Mohr seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
social security disability benefits.

Mohr moves to reverse and

remand the decision, contending that the Administrative Law
Judge (“ALJ”) erred in assessing her treating physician’s
opinion and in finding that she could do her past relevant work
at a telecommunications company.

The Acting Commissioner moves

to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.
scintilla.

§ 405(g).

“Substantial evidence is more than a

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).

Substantial evidence, however, “does

not approach the preponderance–of-the-evidence standard normally
found in civil cases.”

Truczinskas v. Dir., Office of Workers’

Compensation Programs, 699 F.3d 672, 677 (1st Cir. 2012).
Background
The background information is summarized from the parties’
joint statement of material facts.
Mohr filed for disability insurance benefits in January of
2012.

When her application was denied initially, she requested

a hearing before an ALJ, which was held on May 14, 2013.
was fifty-seven years old at the time of the hearing.

Mohr

Her

educational background includes a four-year college degree and
prior work, until 2007, for a telecommunications company.
The medical record begins in January of 2011 when Mohr saw
her primary care physician, Dr. Andrew Sebastyan, because of

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pain and numbness when she walked, a cough, a sleep problem, and
abdominal pain and nausea.

Dr. Sebastyan found edema and

decreased sensation in Mohr’s legs and advised her to drink less
alcohol.

Subsequent treatment notes by Dr. Sebastyan and Carol

Pelletier, APRN, DNP show that when Mohr presented with sleep
problems and other ailments, she was advised to drink less
alcohol but did not comply with that advice.

Mohr also refused

to use a CPAP machine for sleep apnea.
In June of 2012, Dr. Sebastyan prepared a functional
assessment opinion for Mohr in which he diagnosed Mohr with
various ailments but did not mention Mohr’s use of alcohol.
With respect to function, Dr. Sebastyan wrote that Mohr had
frequent problems with concentration, could sit for only fortyfive minutes with a total of four hours in a work day, could
stand for five minutes with standing and walking for a total of
two hours in a work day, would need to elevate her legs at heart
level for sixty percent of a work day, and needed to use a cane.
He thought Mohr could occasionally lift ten pounds, had a
variety of reaching limitations, would have good and bad days,
and would be absent at least two days each month.
Mohr was represented by counsel and testified at the
hearing held in May of 2013.

She said that foot pain kept her

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from working, that she often had to lie down to reduce the pain,
swelling, and numbness in her legs, and that Dr. Sebastyan
suggested that she use a cane.

Mohr also testified that she had

stopped drinking on January 1, 2013, and described her previous
work at a telecommunications company.
A vocational expert appeared and testified at the hearing.
The vocational expert said that Mohr’s description of her past
work sounded like a combination of two jobs listed in the
Dictionary of Occupational Titles, “laborer stores” and customer
service representative.

Mohr’s attorney argued that dividing

the past job into two categories would be inappropriate.
The ALJ issued a decision on June 14, 2013, in which he
found that Mohr had severe impairments of alcoholic neuropathy,
sleep apnea, and obesity.

He found that she had the residual

functional capacity to perform sedentary work with some postural
limitations and that she could do her past work at a
telecommunications company, as that work was actually performed.
Based on those findings, the ALJ concluded that Mohr was not
disabled.

The Appeals Council denied review.
Discussion

Mohr contends that the ALJ’s decision must be reversed and
remanded because he erred in giving little weight to Dr.

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Sebastyan’s opinion, in failing to consider Dr. Sebastyan’s
opinion about absenteeism, and in relying on a clerical error by
the Social Security Administration to find that Mohr could do
her past work.

The Acting Commissioner moves to affirm, arguing

that the ALJ properly evaluated Dr. Sebastyan’s opinion and that
substantial evidence supports the ALJ’s finding that Mohr could
do her past work as it was actually performed.
Disability for purposes of a social security application
means the “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).

The ALJ follows a five-step sequential analysis for determining
whether a claimant is disabled.

20 C.F.R. § 404.1520.

The

claimant bears the burden through the first four steps of
proving that her impairments preclude her from working.
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Freeman

At the fifth

step, if the case is not resolved in the prior four steps, the
ALJ determines whether work that the claimant can do, despite
her impairments, exists in significant numbers in the national
economy and must produce substantial evidence to support that

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finding.

Seavey, 276 F.3d at 5.

A claimant cannot be awarded

benefits, however, if alcoholism or substance abuse was a
contributing factor to a finding of disability.

20 C.F.R.

§ 404.1535; Daniels v. Colvin, 2014 WL 6668783, at *1 (D.N.H.
Nov. 21, 2014).
A.

Medical Opinion Evidence

Mohr contends that the ALJ erred in failing to give
controlling weight to Dr. Sebastyan’s opinion based on a
mistaken finding that the opinion was inconsistent with the
record.

She also contends that the ALJ erred in failing to

consider Dr. Sebastyan’s opinion about her absenteeism.

The

Acting Commissioner argues that the ALJ properly considered and
evaluated Dr. Sebastyan’s opinion.
1.

Treating source.

The ALJ is required to consider the medical opinions in a
claimant’s administrative record.

20 C.F.R. § 404.1527(b).

Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that may be brought to the
ALJ’s attention.

§ 404.1527(c).

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A treating medical source’s

opinion about the claimant’s impairment will be given
controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.”

§ 404.1527(c)(2).

In the residual functional capacity questionnaire, Dr.
Sebastyan wrote diagnoses of hypertension, hyperlipidemia,
hypothyroidism, polyrhythmia, obstructive sleep apnea, obesity,
edema, GERD, smoking, and neuropathy.

Dr. Sebastyan did not

mention Mohr’s alcohol use in his diagnoses or his assessment of
residual functional capacity.

Because of the diagnosed

ailments, Dr. Sebastyan found that pain would frequently
interfere with Mohr’s ability to attend and concentrate, that
she could sit for only forty-five minutes at a time for a total
of four hours and could stand for only five minutes at a time
for a total of two hours, that she would need breaks every
fifteen to thirty minutes, that she would need to elevate her
legs while sitting and would need to use a cane while walking,
that she could only occasionally lift up to ten pounds, and that
she would have significant limitations in reaching.

In

addition, Dr. Sebastyan wrote that Mohr would have good days and

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bad days and would likely be absent two days each month in good
weather and three days each month during the winter.
The ALJ reviewed Dr. Sebastyan’s opinions and acknowledged
that Dr. Sebastyan is Mohr’s treating physician.1

He gave little

weight to Dr. Sebastyan’s opinions, however, because the
opinions were inconsistent with some of Mohr’s treatment notes
and with Mohr’s description of her daily activities.
Specifically, the ALJ cited Dr. Sebastyan’s treatment notes
results from examinations during the applicable period that
indicated no edema, full ranges of motion, and normal
neurological.

The ALJ also noted that Dr. Sebastyan failed to

mention Mohr’s alcohol abuse while his treatment notes diagnosed
alcohol abuse and found that alcohol abuse affected Mohr’s
polyneuropathy.

The ALJ stated that although Dr. Sebastyan said

Mohr uses a cane in the residual functional capacity
questionnaire, there was no prescription for a cane in her
record and Mohr herself reported that she only used a cane to go
to the store.

Although Mohr mentions that an ALJ generally gives more
weight to the opinions of a specialist, as provided by 20 C.F.R.
§ 404.1527(d)(5), she does not explain Dr. Sebastyan’s medical
specialty. The record indicates that Dr. Sebastyan is Mohr’s
primary care physician and does not otherwise show a specialty.
1

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Mohr cites some treatment notes that indicate leg swelling
and neuropathy, which would support Dr. Sebastyan’s opinion.

It

is the ALJ’s role, however, to weigh and resolve conflicts in
the evidence.

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

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

The ALJ concluded that the

treatment notes were not consistent with Dr. Sebastyan’s
opinions, which is supported by the record.
In contrast to Dr. Sebastyan’s opinion that Mohr could only
sit for forty-five minutes at a time, the ALJ noted that Mohr
described her daily activities to include sitting in front of
the computer all day.

The ALJ went on to summarize Mohr’s

description of her activities as a “fairly active lifestyle”
that includes, in addition to extensive computer use, the
ability to attend to her personal care, do housework although at
a slower pace, to drive a car, and to do her own grocery
shopping.

The ALJ also noted that Mohr enjoyed cooking.

Mohr contends that her description of her daily activities
contradicts the ALJ’s finding that she had an “active
lifestyle.”

Mohr misquotes the ALJ’s finding, which was that

she described a “fairly active lifestyle.”

Mohr’s report of her

daily activities in her function report dated February 6, 2012,
supports the ALJ’s assessment.

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The ALJ properly explained the weight attributed to Dr.
Sebastyan’s residual functional capacity assessment.
2.

Opinion on absenteeism.

Mohr contends that the ALJ’s decision must be reversed
because he did not discuss Dr. Sebastyan’s opinion about her
absenteeism.

In support, Mohr argues that because the ALJ did

not discuss Dr. Sebastyan’s opinion on absenteeism, he must have
substituted his own evaluation of the medical evidence for a
treating source’s opinion.

Mohr contends that her case is

analogous to Walker v. Barnhart, 2005 WL 2323169 (D. Mass. Aug.
23, 2005).
In Walker, the ALJ properly explained the weight given to
the claimant’s treating sources’ opinions on psychological
limitations.

Id. at *17.

He did not reference or discuss

physical residual functional capacity assessments, one of which
included an opinion about absenteeism.

Id. at *17.

Because the

ALJ cited no record evidence to support his findings on the
claimant’s physical limitations due to fibromyalgia, the court
concluded that the ALJ substituted his own judgment for the
record evidence.

Id. at *18.

In this case, the ALJ discussed Dr. Sebastyan’s opinion and
gave reasons for giving that opinion little weight.

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Although an

ALJ must consider all of the evidence in the record, an ALJ is
not required to discuss every piece of evidence as long as the
ALJ’s finding is supported by substantial evidence.

Skellie v.

Colvin, 2015 WL 858357, at *6 (D.N.H. Feb. 27, 2015); Trumbull
v. Colvin, 2015 WL 114164, at *6 (D.N.H. Jan. 8, 2015); Perry v.
Colvin, 2014 WL 4725380, at *2 (D.N.H. Sept. 23, 2014).

More

specifically, an ALJ is not required to discuss every finding in
a medical opinion as long as the opinion was considered as part
of the administrative record and weighed as required by
§ 404.1527(c).

Weisgarber v. Colvin, 2014 WL 3052488, at *15

(E.D. Tenn. July 3, 2014); Budensiek v. Colvin, 2013 WL 4010284,
at *6 (D. Md. Aug. 5, 2013).

The ALJ did not err in failing to

discuss Dr. Sebastyan’s opinion about absenteeism.
B.

Alcohol abuse.

In determining disability when the claimant abuses alcohol,
the ALJ must address an additional element.

Caswell v. Colvin,

2014 WL 4749456, at *6 (D.N.H. Sept. 24, 2014).

That is because

a claimant is not eligible for benefits if alcoholism was a
material factor in the disability determination.

42 U.S.C. §

423(d)(2)(C); 20 C.F.R. § 404.1535(a); Alker v. Colvin, 2014 WL
677866, at *7 (D.N.H. Feb. 20, 2014).

The claimant bears the

burden of showing that her alcoholism was not a material factor

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that contributed to the disability determination.

Caswell, 2014

WL 4749456, at *6.
The ALJ noted that Mohr’s treatment notes showed
“persistent issues with alcohol abuse” and found that she had a
severe impairment due to “alcoholic neuropathy.”

The ALJ

concluded, however, that Mohr was not disabled because of her
impairments.

Therefore, the ALJ appropriately did not consider

whether Mohr’s alcoholism was a material contributing factor to
disability.2
C.

Previous Work

At Step Four of the sequential analysis, the ALJ determines
whether the claimant is able to do her past relevant work,
either as that work is categorized in the Dictionary of
Occupational Titles or as the work was actually performed by the
claimant.

Santiago v. Sec’y of Health & Human Servs., 944 F.2d

1, 5 (1st Cir. 1991).

The claimant bears the burden of making a

If that analysis had been necessary, Mohr would not have
carried her burden to show that alcoholism was not a material
contributing factor. Although Mohr testified that she had
stopped drinking on January 1, 2013, and that the swelling in
her feet continued, she lacked any medical evidence to support
her testimony. The ALJ supportably found, based on the record,
including Dr. Sebastyan’s notes, that Mohr’s leg neuropathy was
related to her alcohol abuse. As the ALJ noted, Dr. Sebastyan
did not account for the effects of alcohol abuse in his opinion.
2

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threshold showing that she cannot do her past relevant work.
Id. at 5-6; Chippendale v. Colvin, 2015 WL 225434, at *4 (D.N.H.
Jan. 15, 2015).
In her Disability Report, Mohr described her previous work
at the telecommunications company as “[s]uppl[ying] a service
provider with required tools and resources and overall support
for installation of network services.”

With respect to the

exertional demands of the job, Mohr stated that she sat for
eight hours and that during that time she typed and handled
small objects that weighed less than ten pounds.
In contrast to that description, Mohr testified at the
hearing that her job at the telecommunications company was
“dedicated to the installers.”

She said that when the

installers would have issues with materials “they would call
[her] and yell at [her]” and she would help them “track down
what it is they’re looking for.”

If the installers could not

find what they needed, she would go to the warehouse to help.
She made arrangements to have materials sent to the installers
who were working all over New England.

Mohr said that she spent

half of her time on the telephone and the other half helping the
installers find materials.

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The vocational expert thought that the job Mohr described
at the hearing would be a “laborer, stores” combined with a
customer service representative.

The vocational expert

testified that Mohr could do the customer service representative
part of the job with the residual functional capacity described
by the ALJ, limited to sedentary work, but could not do the
“laborer, stores” part because that required the ability to
medium exertional level work.

There was a discussion about

whether the job could be divided into parts.
In his decision, the ALJ found that Mohr could do her past
job at the telecommunications company as she had described her
work in the Disability Report.

Mohr contends that the ALJ

relied on a clerical error made by the Social Security
Administration in finding that she was able to do her past work.
Mohr argues that her past work as “laborer, stores,” as
identified by the vocational expert, was precluded by the
Dictionary of Occupational Titles description of a medium
exertional level because the ALJ limited her to sedentary work.
Mohr argues that the job as described in the Disability
Report, SSA Form 3368, was incorrect due to an error by “the
Social Security employee that completed SSA Form 3368.”
Specifically, Mohr contends that the employee erred in writing

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that she sat for eight hours each day at work and that she never
stood or walked.

Mohr provides no evidence, however, about who

completed the Report, which is neither dated nor signed.
“To obtain a disability determination by the SSA, an
individual must submit several related forms, including an
Application for Disability Insurance Benefits (Form SSA 16-F6)
(the ‘application form’) and a Disability Report-Adult (Form
SSA-3368-BK) (the ‘disability report’).”

U.S. ex rel. Loughren

v. Unum Group, 613 F.3d 300, 302-03 (1st Cir. 2010).
answers on Mohr’s Disability Report are typed.

The

In response to

the question, “Who is completing this report?” the answer
written is: “The person who is applying for disability.”3

In

response to the question, “Are you currently working?” the
answer written is “No, I have stopped working.”
are also answered in the first person.

Other questions

As written, the

Disability Report appears to have been completed by Mohr.
Further, Mohr did not correct or withdraw the description of her
past work in the Disability Report but instead provided a
different description at the hearing without explaining the
discrepancy.
In contrast, the form that follows SSA 3368, Disability
Report - Field Office - Form SSA-3367, was completed by “B.
Smith” and was based on a face-to-face interview with Mohr.
3

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The ALJ relied on the job description provided in the
Disability Report to find that Mohr could do her past relevant
work.

There is no dispute that the job described in the

Disability Report involved sedentary work.

Therefore, the ALJ’s

finding at Step Four is supported by substantial evidence.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 12) is denied.

The Acting

Commissioner’s motion to affirm (document no. 14) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
April 1, 2015
cc:

Roger D. Turgeon, Esq.
Mark J. Alves, Esq.
Robert J. Rabuck, Esq.

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