Daly v. US Social Security Administration, Acting Commissioner

Filing 13

///CORRECTED ORDER (as to opinion number only) 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)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Richard Daly
v.

Civil No. 16-cv-179-JL
Opinion No. 2017 DNH 085

Nancy A. Berryhill, Acting
Commissioner, Social Security
Administration
CORRECTED ORDER ON APPEAL
John Richard Daly appeals the Social Security
Administration’s (“SSA”) denial of his application for
disability and supplemental security benefits.

An

Administrative Law Judge (“ALJ”) found that Daly suffered from
the following severe impairments:

asymptomatic human

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.

neck pain,

The ALJ

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

1

Administrative Record (“Admin. R.”) at 11-21.

See 42

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
decision.

Therefore, the Acting Commissioner’s motion is

granted and Daly’s is denied.
I.

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).

Ward v.
The

ALJ’s decision will be upheld if it is supported by substantial

2

Admin. R. at 1-3.

3

Doc. no. 8.

4

Doc. no. 11.

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

Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quotations omitted).

This is

less evidence than a preponderance but “more than a mere
scintilla.”
(1966).

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
evidence.

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
supportable.

Rodriguez Pagan v. Sec’y of Health & Human Servs.,

819 F.2d 1, 2 (1st Cir. 1987).

The court next turns to the

ALJ’s decision.
II.

Background5
In analyzing Daly’s benefit application, the ALJ invoked

the required process.

See 20 C.F.R. § 416.920.

First, she

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).
5

6

Admin. R. at 13.

Next, the ALJ determined that Daly suffered from several severe
impairments:

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.

See 20

The ALJ next found

that Daly had the RFC to perform light work, with several
limitations:

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
416.967(b).

7

Id. at 13-14.

8

Id. at 16-17.

9

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).

III. Analysis
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
disorder.

The court finds, however, that the record adequately

supports the ALJ’s consideration of these issues.
A.

COPD
The ALJ recognized that the record contained evidence of

Daly’s COPD, observing that a May 2012 study showed a moderately
severe defect.10

However, the ALJ also noted that Daly’s use of

a bronchodilator improved his condition.11

10

Id. at 19.

11

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
use.12

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.

As for

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.

See Irlanda

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 755, 769 (1st

12

Id. at 19, 448.

13

Id. at 19-20, 529.

14

Id. at 20.

15

Plaintiff’s Motion (doc. no. 8-1) at 3.

16

AR at 18

Cir. 1991) (“It is the responsibility of the Secretary to
determine issues of credibility . . . .”).
B.

Cardiac disease
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

The

ALJ cited subsequent record evidence showing “significant[]
recover[y],” with little additional symptomology.18

While Daly

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

The ALJ

further noted that positive reports continued into 2014:

stress

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

17

Id.

18

Id. at 19.

19

Id.

20

Id.

21

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.
C.

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

It was

well within the ALJ’s purview to resolve the conflict between

22

AR at 18, 48-49, 59-60.

23

Id. at 17.

24

Id. at 517, 519.

25

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)).
D.

Mental health
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.

Dr.

Drummond found that Daly had moderate mental limitations but
could perform significant mental functions.

Instead, Daly

argues, the ALJ should have given great weight to the opinion of
Randall O’Brien, LICSW, the therapist with who treated Daly in
2014.

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

26

Id. at 14-15.

27

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
weight.28

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.

It is

true that under some circumstances, an opinion that is based on
review of only part of the record cannot provide substantial

28

Id. at 15.

evidence to support the ALJ’s residual functional capacity
finding.

See Alcantara, 257 F. App'x at 334.

But that rubric

only applies “if other evidence, not reviewed, supports the
claimant’s limitations.”

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
claimed limitations.
IV.

Conclusion
The court finds that the ALJ’s consideration of Daly’s

physical and mental impairments were supported by substantial
evidence.

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,

29

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
work.

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
DENIED.

The clerk shall enter judgment accordingly and close

the case.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

April 28, 2017

John A. Wolkowski, Esq.
Robert J. Rabuck, AUSA

30

AR at 64-68.

31

Doc. no. 11.

32

Doc. No. 8.