Scully v. US Social Security Administration, Commissioner

Filing 13

///ORDER denying 8 Motion to Reverse Decision of Commissioner; and granting 11 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Timothy Scully,
Claimant
Case No. 16-cv-525-SM
Opinion No. 2018 DNH 003

v.
Nancy A. Berryhill, Acting Commissioner,
Social Security Administration,
Defendant

O R D E R

Pursuant to 42 U.S.C. §§ 405(g), claimant, Timothy Scully,
moves to reverse or vacate the Acting Commissioner’s decision
denying his applications for Disability Insurance Benefits under
Title II of the Social Security Act (the “Act”), 42 U.S.C.
§ 423.

The Acting Commissioner objects and moves for an order

affirming her decision.

For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.

Factual Background
I.

Procedural History.
In July of 2014, claimant filed applications for Disability

Insurance Benefits (“DIB”), alleging that he was disabled and

had been unable to work since February 22, 2014.

That

application was denied on February 18, 2015, and claimant
requested a hearing before an Administrative Law Judge (“ALJ”).

On March 18, 2016, claimant, his attorney, and an impartial
vocational expert appeared before an ALJ, who considered
claimant’s application de novo.

On April 20, 2016, the ALJ

issued his written decision, concluding that claimant was not
disabled, as that term is defined in the Act, through the date
of his decision.

Claimant then requested review by the Appeals

Council, and submitted additional documentation from Ashok Shah,
M.D., in support of his claim.

The Appeals Council denied

claimant’s request for review, and found that the additional
information provided by claimant did not show a reasonable
probability that, either alone or when considered with the other
evidence of record, would change the outcome of the ALJ’s
decision.

Accordingly, the ALJ’s denial of claimant’s

applications for benefits became the final decision of the
Acting 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.

Claimant then filed a “Motion to Reverse Decision of the
Commissioner” (document no. 9).

In response, the Acting

2 

Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 11).

Those motions are

pending.

II.

Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 12), need not be
recounted in this opinion.

Those facts relevant to the

disposition of this matter are discussed as appropriate.

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.”

3 

Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Importantly, 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 DIB benefits is disabled under the

Act if he 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.”

42 U.S.C. § 423(d)(1)(A).

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

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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).

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:

[P]hysical 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).

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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-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, February 22, 2014,
through his date last insured, December 31, 2014.
67.

Admin Rec. at

Next, he concluded that claimant suffers from the following

severe impairments: “bipolar disorder with anxious stress
(variously diagnosed as depression and major depressive
disorder), polysubstance abuse in remission, and asthma/chronic
obstructive pulmonary disease.”

Admin. Rec. at 68.

But, the

ALJ determined that claimant’s impairments, whether considered
alone or in combination, did not meet or medically equal one of
the impairments listed in Part 404, Subpart P, Appendix 1 of the
regulations.

Id. at 70.

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Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to “perform a full range of work at
all exertional levels but with the following nonexertional
limitations: the claimant can tolerate occasional exposure to
dust, odors and fumes, and can tolerate frequent exposure to
both extreme heat and extreme cold.

He can tolerate frequent

exposure to supervisors, and when dealing with changes in the
work setting, the claimant is limited to making simple workrelated decisions.”

Admin. Rec. at 72.

In light of those

restrictions, and based on the testimony of the vocational
expert, the ALJ concluded that claimant was not capable of
performing his past relevant work.

Id. at 77.

At the final step of the analysis, the ALJ considered
whether there were any jobs in the national economy that
claimant might perform.

Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding
claimant’s non-exertional limitations, “the claimant is capable
of making a successful adjustment to other work that existed in
significant numbers in the national economy.”

Id. at 77-78.

Consequently, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act, through the date
of his decision.

7 

Discussion
Claimant claims that the Appeals Council erred by denying
review, when new evidence was submitted to the Council that
would change the outcome of the ALJ’s decision.

Claimant

further challenges the ALJ’s decision, asserting that he erred
by failing to properly evaluate and weigh all the medical and
opinion evidence when determining claimant’s RFC.

I.

Appeals Council Determination.
Pursuant to 20 C.F.R. § 404.970(a), the Appeals Council

will review a case if it “receives additional evidence that is
new, material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable probability
that the additional evidence would change the outcome of the
decision.”

As mentioned above, the Appeals Council determined

that the additional evidence submitted by claimant (the May 24,
2016, questionnaire completed by Dr. Shah) would not change the
outcome of the ALJ’s decision, and denied Scully’s request for
review.

Scully argues that the Appeals Council’s decision was
erroneous because, “in light of [Dr. Shah’s questionnaire], the
record as a whole does not support” the ALJ’s decision.
Supp. of Mot. to Reverse at 5.

Mem. in

According to claimant, Dr.

Shah’s questionnaire clarifies other evidence in the record

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relating to his asthma, including Dr. Loeser’s comment that
Scully has “shortness of breath, which occurs after about 10-15
minute(s) with any strenuous activity,” and contradicts the
ALJ’s determination that claimant had no exertional limitations
resulting from his asthma.

Id. (quoting Admin. Rec. at 74).

Generally, the Appeals Council’s denial of review “is not
reviewable on appeal except when the denial ‘rests on an
explicit mistake of law or other egregious error.’”

Williams v.

Colvin, No. 15-CV-416-JD, 2016 WL 916415, at *2 (D.N.H. Mar. 10,
2016) (quoting Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001)).
“In that exceptional circumstance, the reason for denying review
must be both articulated and ‘severely mistaken’.”

Id (quoting

Mills, 244 F.3d at 5).

Here, claimant fails to sufficiently establish that the
Appeal’s Council committed an “egregious error” by denying
review.

Mills, 244 F.3d at 5; see also Roberson v. Colvin, No.

13-CV-265-JD, 2014 WL 243244, at *4 (D.N.H. Jan. 22, 2014)
(“when the Appeals Council considers new evidence but concludes
that it would not provide a basis for changing the decision,
that conclusion is not egregiously mistaken as long as record
evidence supports the decision.”) (collecting cases).

9 

Scully’s date last insured was December 31, 2014.
Therefore, to be eligible for benefits, he was required to
establish disability by that date.

See McFall v. Colvin, No.

15-CV-160-PB, 2016 WL 900641, at *4 (D.N.H. Mar. 9, 2016) (“a
claimant is not entitled ‘to disability benefits unless [s]he
can demonstrate that h[er] disability existed prior to the
expiration of h[er] insured status.’”) (quoting Cruz Rivera v.
Secretary of Health & Human Servs., 818 F.2d 96, 97 (1st Cir.
1986) and citing 20 C.F.R. § 404.131(a)).

As the Acting

Commissioner points out, Dr. Shah’s May 2016 questionnaire is an
assessment of Scully’s limitations as of May 2016, not of
Scully’s limitations a year and a half earlier.

Cf., McFall v.

Colvin, 2016 WL 900641, at *4 (“It is not enough ‘for a claimant
to establish that her impairment had its roots before the date
that her insured status expired.’ Instead, ‘the claimant must
show that her impairment(s) reached a disabling level of
severity’ before her [date last insured].”) (quoting Moret
Rivera v. Secretary of Health & Human Servs., 19 F.3d 1427, 1994
WL 107870, at *5 (1st Cir. 1994) (Table)).

While “[m]edical evidence generated after a claimant's
insured status expires may be considered for what light (if any)
it sheds on the question of whether claimant's impairment(s)
reached disabling severity before claimant's insured status

10 

expired,” Moret Rivera, 1994 WL 107870, at *5, the record here
makes clear that the ALJ carefully considered Dr. Shah’s
contemporaneous treatment records (records upon which,
presumably, his May 2016 questionnaire was, at least in part,
based) when making his determination.
74.

See Admin. Rec. at 70,

That evidence supports the ALJ’s finding that claimant’s

asthma condition was well-controlled with treatment.

For example, a letter prepared by Dr. Shah on September 18,
2014, notes that claimant’s condition “improved significantly”
with Xolair treatment, but, after losing his job, claimant had
not “been able to get his medications,” and “has been feeling
worse,” with well below normal pulmonary function tests.
Rec. at 474.

Admin.

The letter continues: “With treatment[,] his

conditions would improve.”

Id.

Dr. Shah’s treatment records

reflect similar observations and findings.

See, e.g., Admin.

Rec. at 478 (May 29, 2014, medical record noting that claimant
“[r]an out of all medication,” and “asthma is worse lately”);
id. at 477 (Feb. 11, 2014, medical record noting “not filling Rx
due to cost,” and “[a]sthma worse lately”).

And, while

treatment records from claimant’s primary care providers
reference his asthma as a long-standing condition, those records
rarely mention its exacerbation, instead frequently noting
claimant’s “unlabored respiratory effort,[and] normal chest

11 

expansion.”

See, e.g., Admin. Rec. at 399 (Sept. 9, 2014), id.

at 407 (Apr. 9, 2014); id. at 411 (Feb. 13, 2014), id. at 416
(Oct. 17, 2013, observing “normal breath sounds, no wheezes, no
rales, no rhonchi, unlabored respiratory effort, normal chest
expansion”); id. at 421 (July 1, 2013, same)).

Those medical

records that do observe exacerbation of claimant’s asthma
consistently note that claimant has not taken his prescribed
medication (Admin. Rec. at 356-363 (Jul. 7, 2014); id. at 628
(Feb, 11, 2015)), or that claimant had previously been “getting
special shots twice a month for his asthma which were
controlling his symptoms quite nicely.” See, e.g., Admin. Rec.
at 402 (August 19, 2014).

Indeed, claimant himself testified

concerning his asthma, as long as he is “taking the [Xolair]
injections, things are okay.”

Admin. Rec. at 109.

Accordingly,

the record evidence provides considerable support for the
Appeals Council’s determination.

For all those reasons, claimant has not sufficiently
established that the Appeals Council was egregiously mistaken in
denying review.

II.

Substantial Evidence Supports the ALJ’s RFC Determination.
Next, claimant asserts that ALJ’s RFC determination is not

supported by substantial evidence because the RFC does not
adequately account for his asthma/COPD or shoulder impairments.

12 

In support of that argument, claimant contends that the ALJ
erred by relying upon the reports of Dr. Loeser and Dr. Jaffe.

A. The ALJ’s Reliance on Dr. Loeser’s Report
Claimant argues that, because Dr. Loeser’s report mentions
that Scully has shortness of breath after performing strenuous
activity (Admin. Rec. at 496), that report instead supports a
finding that claimant is limited in terms of strenuous work.

Dr. Loeser’s report states:
The patient notes the symptoms related to his [asthma]
first began about 33 years ago, without known trauma
or related surgeries. The patient notes the symptoms
have been relatively consistent over this time period.
Currently, the patient notes episodic shortness of
breath, which occurs after about 10-15 minute(s) with
any strenuous activity. Overall, the patient notes
his asthma symptoms are well controlled with his
current medications.

Admin. Rec. at 496 (emphases added).

So, the shortness of

breath noted in Dr. Loeser’s report was actually self-reported
by claimant, not observed by Dr. Loeser.

Instead, Dr. Loeser

observed that claimant “moved with ease around the examination
room without any apparent deficits or impairments.”

Admin. Rec.

at 498.

Claimant correctly points out that “[s]itting and walking
across an exam room are certainly not the same as doing a ‘good

13 

deal’ of walking, and lifting and carrying 50 pounds, or
frequently carrying [25] pounds, which are all required of
medium work.”

Mem. in Supp. of Mot. to Reverse at 8 (citing 20

C.F.R. § 404.1567).

However, as the ALJ observed, claimant’s

position that his asthma imposes exertional RFC limitations is
undermined by: (1) his statement that his asthma symptoms had
been consistent over the last 33 years, yet he had been capable
of gainful work activity for the majority of those 33 years; (2)
claimant’s statement that he had been let go from his previous
job not because he was physically or mentally incapable of
performing that job, but because of his age (see Admin. Rec. at
96; see also id. at 406 (“no longer works at jail.
bad terms.

[L]eft under

[F]elt he was forced out by administration”)); and

(3) medical evidence in the record concerning claimant’s asthma
(as summarized above) characterizing the condition as wellcontrolled by medication (see supra).

Accordingly, the ALJ’s

findings concerning claimant’s asthma/COPD are supported by
substantial evidence in the record.

See Admin. Rec. at 74.

With respect to claimant’s bilateral shoulder impairment,
he argues that the ALJ erroneously relied on Dr. Loeser’s report
to find that he had no exertional limitations arising out of his

14 

shoulder impairments.1

Dr. Loeser’s report references claimant’s

bilateral shoulder surgeries, and states that, upon examination,
claimant’s “upper extremities” were “unremarkable.”
at 497.

Admin. Rec.

But, claimant says, because Dr. Loeser’s report did not

assess claimant’s shoulder range of motion, strength, or his
ability to reach, that report cannot be used as support for the
ALJ’s conclusion.

Claimant further argues that Dr. Loeser’s

opinion provides no evidence of his limitations, as opposed to
his treatment records and statements, which “show[] a clear
pattern of limited use of his upper extremities due to shoulder
impairments.”

Mem. in Supp. of Mot. to Reverse at 8.

While claimant’s argument is somewhat confusing, he
seemingly takes the position that because, upon examination, Dr.
Loeser found claimant’s upper extremities “unremarkable,” Dr.
Loeser’s report is necessarily invalid.

To be sure, there is

evidence in the record that supports claimant’s position
concerning the severity of his bilateral shoulder impairment.
See, e.g., Admin. Rec. at 709 (May 20, 2015, treatment record
from orthopedist Dr. Thut, stating that claimant’s right
shoulder pain “started years ago with no known injury.
[surgery] in 2010.

He had

He did well after the surgery for about 1 or

1

Claimant seemingly does not dispute the ALJ’s determination
that his bilateral shoulder impairment is non-severe.  

15 

2 years, but . . . has noticed recurrent pain. . . .

He has

been having progressive worsening of this shoulder pain for
about 2-3 years now.”); Admin. Rec. at 717 (July 1, 2015,
treatment record from orthopedist Dr. Thut, stating “Tim is back
due to continued bilateral shoulder pain.

The RIGHT is probably

worse than the LEFT.”); Admin. Rec. at 410 (Feb. 13, 2014,
treatment record from Jean Ball APRN, stating “here for ongoing
issues with left shoulder.
a few years.
pain.

[H]as been bothersome on and off for

[C]annot recall one specific event that caused the

[S]tate[s] that over the past [six] months has been more

constant and pain more intense.”).

However, there is also substantial evidence in the record
that supports a finding that, “beyond periods of recovery
following [claimant’s repeated shoulder] surgeries, the claimant
did not suffer from more than mild work-related limitations from
any orthopedic impairment for any consecutive 12-month period
since the alleged onset date.”

Admin. Rec. at 69.

The medical

evidence in the record suggests that, following shoulder
surgery, claimant’s symptoms generally improved.

For example,

three months after claimant’s November, 2010, right shoulder
surgery, his “range of motion [was] nearly full,” his “strength
[was] excellent,” he was in no “real pain,” and doing well.
Admin. Rec. at 540.

Claimant returned to work as a corrections

16 

officer following the surgery, and, as the ALJ observed: “[t]he
fact the claimant worked for more than three years after his
injuries and right shoulder surgery suggests his status post
right rotator cuff repair, lateral tear and biceps tendon
dislocation was not particularly limiting for him.”
at 69.

Admin. Rec.

And, aside from the period preceding claimant’s second

right shoulder surgery in December, 2015, the medical evidence
reflects few complaints from claimant concerning his right
shoulder.

See, e.g., Admin. Rec. at 398; id. at 414; id. at

424; id. at 427.

Similarly, following claimant’s left shoulder

surgery in May, 2014, he was “doing well,” and stopped wearing
his sling seven days after surgery.

Admin. Rec. at 571-572.

Such evidence is consistent with Dr. Loeser’s finding that
claimant’s upper extremities were “unremarkable,” and supports
the ALJ’s decision to credit Dr. Loeser’s report.

“It is the responsibility of the Secretary to determine
issues of credibility and to draw inferences from the record
evidence. Indeed, the resolution of conflicts in the evidence is
for the Secretary, not the courts.”

Ortiz, 955 F.2d at 769.

The court “must uphold the [Commissioner's] conclusion, even if
the record arguably could justify a different conclusion, so
long as it is supported by substantial evidence.”

Tsarelka v.

Secretary of Health & Human Servs., 842 F.2d 529, 535 (1st Cir.

17 

1988).

Here, because substantial evidence supports the ALJ’s

findings, claimant’s arguments concerning the ALJ’s reliance on
Dr. Loeser’s report are unpersuasive.

B. The ALJ’s Reliance on Dr. Jaffe’s Report
Claimant’s argument concerning Dr. Jaffe’s report is
similarly unavailing.

He contends that, because Dr. Jaffe

offered his opinion prior to claimant’s December, 2015, shoulder
surgery and subsequent treatment, the ALJ should not have relied
upon it.

However, the fact that Dr. Jaffe’s medical review did

not encompass claimant’s 2015 surgery was referenced by the ALJ,
who stated:

The non-examining State agency medical consultant,
Jonathan Jaffe, M.D., reviewed this case in February
2015. As such, Dr. Jaffe considered evidence of the
claimant’s multiple surgical procedures, except for
the claimant’s December, 2015, right shoulder surgery,
which obviously occurred subsequent to his review of
the evidence [see Admin. Rec. at 666-667], and
concluded the claimant’s only severe impairment was
asthma/COPD [Admin. Rec. at 146-158; id. at 159 –
171]. Still, in January, 2016, the claimant was “no
longer taking pain medication and report[ed] he [was]
taking Tylenol as needed at [that] time,” [Admin. Rec.
at 737] which is not consistent with a severe level of
pain. Indeed, the claimant reported his pain was
“well controlled.” [See, e.g., Admin. Rec. at 743.]
By February, 2016, although the claimant continued to
“restrict use” of his right upper extremity, he was
“spending time out of the sling without difficulty.”
[Admin. Rec. at 751.] The claimant’s motion
“continu[ed] to improve weekly,” and he was “very
comfortable.” [Admin. Rec. at 756.] Later in
February, 2016, about nine weeks after his right

18 

shoulder operation, the claimant obtained a gym
membership at Planet Fitness, and reported his
shoulder was “a little sore as he was doing some
[upper extremity] resistance training on the
machines,” and he had only “mild pain complaints.”
[Admin. Rec. at 761-762.] By March, 2016, the
claimant discontinued physical therapy because he was
“ready to continue on his own in a gym setting.”
[Admin. Rec. at 765.] The claimant was working out at
the gym, and had been “doing some work siding a
house,” and working in construction generally,
including “constant hammering.” [Admin. Rec. at 733;
Admin. Rec. at 766.] These activities completely
contradict the claimant’s allegations of any more than
mild orthopedic limitations for any consecutive 12month period since the alleged onset date.
Admin. Rec. at 70.
As this court has previously stated:
It can indeed be reversible error for an
administrative law judge to rely on an RFC opinion of
a non-examining consultant when the consultant has not
examined the full medical record.” Strout v. Astrue,
Civil No. 08–181–B–W, 2009 WL 214576, at *8 (D. Me.
Jan. 28, 2009) (citing Rose v. Shalala, 34 F.3d 13, 18
(1st Cir. 1994)). However, an ALJ may rely on such an
opinion where the medical evidence postdating the
reviewer's assessment does not establish any greater
limitations, see id. at *8–9, or where the medical
reports of claimant's treating providers are arguably
consistent with, or at least not “clearly
inconsistent” with, the reviewer's assessment. See
Torres v. Comm. of Social Security, Civil No. 04–2309,
2005 WL 2148321, at *1 (D.P.R. Sept. 6, 2005)
(upholding ALJ's reliance on RFC assessment of nonexamining reviewer where medical records of treating
providers were not “in stark disaccord” with the RFC
assessment). See also McCuller v. Barnhart, No. 02–
30771, 2003 WL 21954208, at *4 n.5 (5th Cir. 2003)
(holding ALJ did not err in relying on non-examining
source's opinion that was based on an incomplete
record where he independently considered medical
records dated after the non-examining source's
report).

19 

Ferland v. Astrue, No. 11-CV-123-SM, 2011 WL 5199989, at *4
(D.N.H. Oct. 31, 2011).
Here, the ALJ reviewed claimant’s medical records,
including those post-dating claimant’s December, 2015, surgery,
and determined that those medical records were consistent with
Dr. Jaffe’s opinion.

The ALJ capably explained that

determination with detailed citations to the record.

Indeed,

claimant fails to point to any evidence in the record
inconsistent with the ALJ’s determination.

Based on the court’s

review, the record supports the ALJ’s conclusion.

So, in sum, the court finds that the ALJ did not err in
relying on Dr. Loeser’s and Dr. Jaffee’s reports in his RFC
analysis.

It is worth noting, however, that the ALJ’s

determination concerning claimant’s RFC did not rest solely upon
the reports of Dr. Jaffe and Dr. Loeser.

While the ALJ made

clear that he was crediting those reports, he also relied on
considerable additional evidence in the record in support of his
RFC determination.

The ALJ considered the fact that claimant

collected unemployment insurance during the period of his
alleged disability, which required him to sign documents
asserting that he was ready, willing and able to work.
Rec. at 75; see id. at 95-96.

Admin.

The ALJ considered the

circumstances surrounding claimant’s departure from his previous

20 

job, specifically, that claimant testified he was “pushed out”
by his employer due to age, and did not indicate that he had any
physical or mental health problems performing his job.

Admin.

Rec. at 75; see Admin. Rec. at 96; id. at 251; id. at 406.

The

ALJ noted that claimant had worked for Labor Ready Northeast,
Inc., after the alleged onset date (although he earned income at
less than substantial gainful activity); and had performed
construction work.

Admin. Rec. at 75; see e.g., id. at 467

(July 21, 2014, treatment notes from Northern Human Services,
stating: “[claimant] will work odd jobs under the table to make
ends meet.”).

Indeed, there are repeated references in the

record to claimant performing construction work, or other
physical labor after his alleged onset date.

See Admin. Rec. at

573 (May 20, 2015, treatment record from Dr. Thut, stating: “he
has been using his arm during the day doing construction.”); id.
at 585 (July 1, 2015, treatment record from Dr. Thut, stating:
“He has been able to do some small side jobs in construction
with his shoulders as they are.”); id. at 468 (July 29, 2014,
treatment notes from Northern Human Services, stating:
“[claimant] reports feeling slightly better but is fatigued and
achy as a result of doing some physical work to supplement his
income.”); id. at 521 (Sept. 2, 2015, Portsmouth Regional
Hospital treatment records, stating: “worked as a carpenter and
was unable to work for the last week prior to his admission.”);

21 

id. at 766 (Mar. 2, 2016, treatment notes from Sport and Spine
Physical Therapy, stating: “Reports he has been doing some work
siding a house; constant hammering causing fatigue and increased
soreness.”)

Finally, the ALJ noted that claimant reported in

his function report that he had no issues sitting, standing or
walking.

Admin. Rec. at 75; see id. at 266.

Viewing the record as a whole, the court cannot conclude
that the ALJ erred in determining claimant’s residual functional
capacity.

Rather, the court finds that the ALJ’s RFC

determination is well-reasoned and supported by substantial
evidence in the record.

Conclusion
Judicial review of the ALJ’s decision is both limited and
deferential.

This 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.
Consequently, the issue before the court is not whether it
believes claimant is disabled.

Rather, the permissible inquiry

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).

Provided the ALJ’s findings are properly supported by
substantial evidence - as they are in this case - the court must

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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) (“[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
evidence.”); Rodriguez v. Secretary of Health & Human Services,
647 F.2d 218, 222 (1st Cir. 1981) (“We must uphold the
[Commissioner’s] findings in this case if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support his conclusion.”).

Having carefully reviewed the administrative record 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,” as that term is used in the Act, at any time prior
to the date of the ALJ’s decision (April 20, 2016).

For the foregoing reasons, as well as those set forth in
the Acting Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 8) is
denied, and the Acting Commissioner’s motion to affirm her

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decision (document no. 11) 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
January 3, 2018
cc:

Daniel W. McKenna, Esq.
Terry L. Ollila, AUSA 

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