Daly v. US Social Security Administration, Acting Commissioner
See Corrected Order doc. no. 13 - ///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 11 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb) Modified on 4/28/2017 to add see corrected order text: (jb).
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Richard Daly
Civil No. 16-cv-179-JL
Opinion No. 2018 DNH 085
Nancy A. Berryhill, Acting
Commissioner, Social Security
ORDER ON APPEAL
John Richard Daly appeals the Social Security
Administration’s (“SSA”) denial of his application for
disability and supplemental security benefits.
Administrative Law Judge (“ALJ”) found that Daly suffered from
the following severe impairments:
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:
kidney disease, hyperlipidemia and depression.
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
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 42 U.S.C. § 405(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
Therefore, the Acting Commissioner’s motion is
granted and Daly’s is denied.
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.”
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
ALJ’s decision will be upheld if it is supported by substantial
Admin. R. at 1-3.
Doc. no. 8.
Doc. no. 11.
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Perales, 402 U.S. 389, 401 (1971) (quotations omitted).
less evidence than a preponderance but “more than a mere
Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
Consolo, 383 U.S. at 620.
Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987).
The court next turns to the
In analyzing Daly’s benefit application, the ALJ invoked
the required process.
See 20 C.F.R. § 416.920.
concluded that Daly had not engaged in substantial work activity
after the alleged onset of his disability on January 21, 2013.6
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).
Admin. R. at 13.
Next, the ALJ determined that Daly suffered from several severe
asymptomatic human immunodeficiency virus (HIV),
chronic obstructive pulmonary disease (COPD), coronary artery
disease, and right coronary artery status post stent insertion.7
See 20 C.F.R. § 416.1520(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
C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
The ALJ next found
that Daly had the RFC to perform light work, with several
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
Id. at 13-14.
Id. at 16-17.
Id. at 17.
See 20 C.F.R. §§ 404.1567(b) and
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 42 U.S.C. § 423(d).
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
The court finds, however, that the record adequately
supports the ALJ’s consideration of these issues.
The ALJ recognized that the record contained evidence of
Daly’s COPD, observing that a May 2012 study showed a moderately
However, the ALJ also noted that Daly’s use of
a bronchodilator improved his condition.11
Id. at 19.
Id. at 19, 534.
Moreover, in February
2014, Dr. Buono, one of Daly’s treating physicians, reported
that Daly’s COPD had been well-managed with occasional albuterol
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.
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.
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 755, 769 (1st
Id. at 19, 448.
Id. at 19-20, 529.
Id. at 20.
Plaintiff’s Motion (doc. no. 8-1) at 3.
AR at 18
Cir. 1991) (“It is the responsibility of the Secretary to
determine issues of credibility . . . .”).
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
ALJ cited subsequent record evidence showing “significant
recover[y],” with little additional symptomology.18
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
further noted that positive reports continued into 2014:
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
Id. at 19.
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.
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
well within the ALJ’s purview to resolve the conflict between
AR at 18, 48-49, 59-60.
Id. at 17.
Id. at 517, 519.
Id. at 20, 532, 534.
Daly’s testimony and the medical record.
See Irlanda Ortiz, 955
F.2d at 769 (“Indeed, the resolution of conflicts in the
evidence is for the Secretary, not the courts.”) (citing
Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)).
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.
Drummond found that Daly had moderate mental limitations but
could perform significant mental functions.
argues, the ALJ should have given great weight to the opinion of
Randall O’Brien, LICSW, the therapist with who treated Daly in
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
Id. at 14-15.
Id. at 539-540.
“reserved to the Commissioner.”
See Coppola v. Colvin, 2014 DNH
033, 14 (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, 20 C.F.R. §§ 404.1527(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
Labrecque v. Colvin, 2015 DNH 098, 8-9; 20 C.F.R. §§
416.902, 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, 257 F.
App'x 333, 334-35 (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.
true that under some circumstances, an opinion that is based on
review of only part of the record cannot provide substantial
Id. at 15.
evidence to support the ALJ’s residual functional capacity
See Alcantara, 257 F. App'x at 334.
But that rubric
only applies “if other evidence, not reviewed, supports the
McGowen v. Colvin, 2016 DNH 056, 15-
16. (citing Alcantara, 257 F. App'x at 334).
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
The court finds that the ALJ’s consideration of Daly’s
physical and mental impairments were supported by substantial
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,
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
Gray v. Heckler, 760 F.2d 369, 372 (1st Cir. 1985).
Accordingly, the Acting Commissioner’s motion to affirm31 is
GRANTED and the claimant’s motion to reverse or remand32 is
Joseph N. Laplante
United States District Judge
April 28, 2017
John A. Wolkowski, Esq.
Robert J. Rabuck, AUSA
AR at 64-68.
Doc. no. 11.
Doc. No. 8.
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