Pavlakos v. US Social Security Administration, Commissioner

Filing 18

///ORDER granting 17 Motion to Affirm Decision of Commissioner; denying 9 Motion to Reverse Decision of Commissioner. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Robert Pavlakos
v.

Civil No. 17-cv-362-JL
Opinion No. 2018 DNH 163

U.S. Social Security
Administration, Acting
Commissioner

ORDER ON APPEAL
Robert Pavlakos has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability and disability insurance benefits.

An

administrative law judge (“ALJ”) at the SSA ruled that, despite
several severe impairments, Pavlakos retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and thus is not
disabled.1

See 20 C.F.R. §§ 404.1505(a), 416.905(a).

The

Appeals Council denied Pavlakos’s request for review, with the
result that the ALJ’s decision became the final decision on his
application, see id. § 404.981.

1

Pavlakos then appealed the

The ALJ issued a decision in 2013 concluding that Pavlakos was
not disabled. On appeal, the district court reversed that
decision and remanded it for further consideration. Pavlakos v.
Colvin, 2015 DNH 52 (DiClerico, J.). After addressing the
issues that the Appeals Council directed him to consider in
light of that remand, the ALJ issued a new decision in 2015,
again concluding that Pavlakos is not disabled. This court now
addresses that 2015 decision.

decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Pavlakos has moved to reverse the decision.
LR 9.1(b).

See

The Acting Commissioner of the SSA has cross-moved

for an order affirming the ALJ’s decision.

See LR 9.1(c).

After careful consideration, the court denies Pavlakos’s motion
and grants the Acting Commissioner’s motion.
Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.”

Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

It

“review[s] questions of law de novo, but defer[s] to the
Commissioner’s findings of fact, so long as they are supported
by substantial evidence,” id., 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).

Though the evidence in the record may

support multiple conclusions, the court will still uphold the
ALJ’s findings “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
his conclusion.”

Irlanda Ortiz v. Sec’y of Health & Human

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

2

The court therefore

“must uphold a denial of social security . . . benefits unless
‘the [Acting Commissioner] has committed a legal or factual
error in evaluating a particular claim.’”

Manso-Pizarro v.

Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)
(per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885
(1989)).
Background2
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Pavlakos’s request for
disability and disability insurance benefits.
§§ 404.1520, 416.920.

See 20 C.F.R.

After determining that Pavlakos had not

engaged in substantial gainful activity after the alleged onset
of his disability on February 15, 2008, the ALJ analyzed the
severity of his impairments.

At this second step, the ALJ

concluded that Pavlakos had the following several impairments:
bipolar disorder, posttraumatic stress disorder (PTSD), and
degenerative disc disease.3
At the third step, the ALJ found that Pavlakos’s severe
impairments did not meet or “medically equal” the severity of

2

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. 11) is incorporated
by reference.
3

Admin. R. at 561.

3

one of the impairments listed in the Social Security
regulations.4

See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926.

In doing so, the ALJ rejected

the opinion of impartial medical expert Dr. Richard Cohen, who
opined that Pavlakos’s mental impairments equaled listing 12.04.
After reviewing the medical evidence of record, medical
opinions, and Pavlakos’s own statements, the ALJ concluded that
Pavlakos retained the RFC to perform light work, see 20 C.F.R.
§§ 404.1567(b) and 416.967(b), except that he could:
[o]ccasionally climb, balance, stoop, kneel, crouch,
and crawl; he would be limited to simple-unskilled
work; he could persist at tasks for two-hour periods
over an eight-hour day and forty-hour week; and he
could sustain brief and superficial social interaction
with the general public, co-workers, and supervisors.5
Finding that, even limited in this manner, Pavlakos was able to
perform jobs that exist in significant numbers in the national
economy, see 20 C.F.R. §§ 404.1566 and 416.966, the ALJ
concluded his analysis and found that Pavlakos was not disabled
within the meaning of the Social Security Act.
Analysis
Pavlakos challenges the ALJ’s decision on three fronts,
arguing that the ALJ erred by:

4

Id. at 562-63.

5

(1) rejecting Dr. Cohen’s

Admin. R. at 563.

4

opinion that Pavlakos’s mental impairments medially equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1; (2) concluding that Pavlakos has the RFC
to perform full-time work; and (3) relying on an incomplete
hypothetical question to the vocational expert in finding that
Pavlakos can perform work available in the local and national
economy.6
A.

The court addresses each argument in turn.
Dr. Cohen’s opinion

The ALJ called Dr. Cohen, a board-certified psychiatrist,
to testify as a medical expert at Pavlakos’s hearing.

Dr. Cohen

testified that Pavlakos’s bipolar disorder, PTSD, and a
previously undiagnosed dependent personality disorder were
severe impairments.7

He concluded that these impairments did not

meet or equal the “B criteria” of Listing 12.04 because they
only moderately impaired Pavlakos’s activities of daily living,
social functioning, and ability to concentrate, persist, and
keep pace, and because he had no episodes of decompensation for
extended duration.8

Dr. Cohen further opined, however, that

6

Pavlakos includes a section in his memorandum entitled
“Mr. Pavlakos continues to be severely impaired by his mental
health conditions,” but alleges no error by the ALJ in relation
to the information from the record provided in that section.
7

Admin R. at 617-18.

8

Id. at 618-19. The SSA revised the mental disorder listings,
including the “paragraph B” criteria, effective January 17,
2017. Because the ALJ issued the decision in question before
5

Pavlakos’s mental impairments, when combined with chronic pain
from his physical impairments, medically equaled Listing
12.04C(2).9

Specifically, he concluded that “the stress of

working would increase his mood swings, . . . nightmares and
flashbacks, . . . anxiety, . . . grandiosity, [and] racing
thoughts to the point where he’s missed more than three days of
work a month.”10

The ALJ rejected this conclusion.

The ALJ “is responsible for deciding the ultimate legal
question whether a listing is met or equaled.”

Titles II & XVI:

Consideration of Admin. Findings of Fact by State Agency Med. &
Psychological Consultants & Other Program Physicians &
Psychologists at the Admin. Law Judge & Appeals Council (“SSR
96-6P”), 1996 WL 374180, *3 (S.S.A. July 2, 1996).11

“In

evaluating the opinions of medical sources on issues,” such as
this one, which are “reserved to the Commissioner, the [ALJ]
must apply the applicable factors in 20 CFR 404.1527(d) and

that date, the previous requirements for mental disorder
listings applied to Pavlakos’s claim.
9
10

Id. at 619.
Id. at 619-20.

11

SSR 96-6P has since been rescinded and replaced, but was in
effect when the ALJ issued his decision. See Social Security
Ruling (SSR) 17-2p: Titles II and XVI: Evidence Needed by
Adjudicators at the Hearings and Appeals Council Levels of the
Administrative Review Process To Make Findings About Medical
Equivalence, 82 FR 15263-02 (Mar. 27, 2017).

6

416.927(d).”

Titles II & XVI: Med. Source Opinions on Issues

Reserved to the Comm'r (“SSR 96-5P”), 1996 WL 374183, *3 (S.S.A.
July 2, 1996).

Under those regulations, the ALJ uses medical

sources “to provide evidence, including opinions, on the nature
and severity of [the applicant’s] impairment(s),” but retains
“the final responsibility for deciding” whether a petitioner’s
“impairment(s) meets or equals” a listing.
§ 404.1527(d)(2), 416.927(d)(2).

20 C.F.R.

“Although an ALJ is not free

to simply ignore medical opinions supporting a claimant’s
position, [he] remains free to independently evaluate their
weight.

[He] can accept each piece of evidence completely,

partially, or not at all, provided that [he] does so on ‘wellsupported grounds.’”

Dimambro v. U.S. Soc. Sec. Admin., Acting

Comm’r, 2018 DNH 4, 10 (Barbadoro, J.)
Here, the ALJ considered Dr. Cohen’s opinion that
Pavlakos’s impairments medically equaled a listing.

He then

extensively explained why he afforded that opinion less than
great weight, supporting his reasoning with citations to the
record.12

Among other reasons, the ALJ noted that Dr. Cohen, who

did not treat or examine Pavlakos, concluded without explanation
that Pavlakos “equals a listing only when also considering his
co-morbid ‘pain’ from his back condition, an area that falls

12

Admin. R. at 569-71.

7

outside [Dr. Cohen’s] expertise” as a psychiatrist.13

The ALJ

further observed that Dr. Cohen did not support his conclusion
with any citations to the record evidence or Pavlakos’s
treatment history which, the ALJ noted, lacked a record of
subjective complaints or objective notes about back pain.14

The

ALJ also noted that the record contained ample evidence of
Pavlakos’s ability to concentrate -- to the point of obtaining
high grades in culinary school -- in contrast to Dr. Cohen’s
unsupported conclusion that said back pain would compromise
Pavlakos’s ability to concentrate to the extent that his
impairments medically equaled a listing.15
Pavlakos challenges each of the ALJ’s reasons for
discounting Dr. Cohen’s opinion, arguing, in effect, that
Dr. Cohen’s expertise and careful review of the record warrant
greater weight and that his opinion has support in the record
itself.16

But Pavlakos does not identify any error of fact or

law that infects the ALJ’s weighing of Dr. Cohen’s opinion.
Absent any such error, though reasonable minds reviewing the

13

Id. at 569.

14

Id. at 569-70. See also id. at 567-68 (detailing Pavlakos’s
history of presenting with no acute distress and with normal
results under evaluation).
15

Id. at 570.

16

Plaintiff’s Mem. (doc. no. 9-1) at 7-13.

8

evidence may weigh Dr. Cohen’s opinion differently, the court
upholds the ALJ’s findings because the evidence in the record as
a whole supports his conclusions.

Irlanda Ortiz, 955 F.2d at

769.
Citing the Hearings, Appeals and Litigation Law Manual
(HALLEX) § I-2-6-70, Pavlakos also argues that, if the ALJ found
Dr. Cohen’s reasoning inadequate, he was obligated to ask
Dr. Cohen further questions to clarify that reasoning.17
Pavlakos does not, however, identify any question that the ALJ
should have asked or any answer that would have altered the
ALJ’s weighing of the evidence.

If the ALJ “intends to find

that the claimant equals the requirements of a listing,” he must
“[r]equest an opinion from the [medical expert] about whether
the claimant had or has an impairment(s) that medically equals
the criteria of the listing and the reasons for the opinion.”
HALLEX § I-2-6-70(D).

Here, even though the ALJ did not find

that Pavlakos’s impairments medically equaled a listing, he did
request the reasons for Dr. Cohen’s opinion -- and then
thoroughly explained the weight he afforded it.
did not err.

17

Plaintiff’s Mem. (doc. no. 9-1) at 13.

9

Accordingly, he

B.

Pavlakos’s RFC

After considering the evidence, the ALJ concluded that
Pavlakos retained the RFC to “perform light work” with a handful
of physical and mental limitations.18

Pavlakos contends that the

ALJ erred because the RFC fails to account for his impending
absenteeism.19

Specifically, Pavlakos contends that Dr. Cohen’s

opinion and certain notations in his treatment history support a
conclusion that he would miss work more than three times a
month, which exceeds the “customary tolerance for unskilled
work,” which the Vocational Expert testified “would be no more
than one absence per month.”20
Dr. Cohen opined that Pavlakos would have difficulty
getting along with his supervisors and coworkers
because he’s grandiose and he would start to tell the
supervisors what to do as he’s done in the past and
he’s lost jobs because of that and then irritability
and anger would take over when he had the manic
episodes . . . . Even if an unskilled job, it
wouldn’t . . . last and he’d start to miss work . . .
.21

18

Admin. R. at 563.

19

Plaintiff’s Mem. (doc. no. 9-1) at 15-17.

20

Plaintiffs’ Mem. (doc. no. 9-1) at 15-17 (quoting Admin. R. at
630-31).
21

Admin. R. at 623.

10

Pavlakos contends that the ALJ erred by failing to conclude,
based on this opinion, that Pavlakos would be unable to maintain
full-time employment.
Though the ALJ did not address this specific element of
Dr. Cohen’s opinion, as discussed supra, the ALJ extensively
explained his reasons for the weight he afforded Dr. Cohen’s
opinion.22

In doing so, he specifically cited Pavlakos’s ability

to attend a culinary school several days a week, where he
maintain passing grades.23
In crafting Pavlakos’s RFC, the ALJ also weighed the record
evidence concerning Pavlakos’s ability to maintain concentration
and to function socially.

In addition to Pavlakos’s ability to

attend school and obtain passing grades, he relied on Pavlakos’s
ability to hold down a part-time job between 2010 and 201424 and
his other regular activities, including church attendance, a 3day school trip to Boston, working as a vacation bible school
video coordinator, and cooking at the Salvation Army.25
Pavlakos, on the other hand, has pointed to no specific record

22

Id. at 569-71.

23

Id. at 570.

24

Id. at 569.

25

Id. at 568, 571.

11

evidence supporting Dr. Cohen’s opinion on this subject26 or
requiring a conclusion that the ALJ improperly weighed
Dr. Cohen’s medical opinion.
C.

Hypothetical question

Finally, Pavlakos contends that the ALJ erred by relying on
a hypothetical question to the Vocational Expert that did not
reflect Pavlakos’s limitations.27

This argument amounts to a

collateral attack on the ALJ’s RFC determination.

Because the

ALJ did not err in crafting Pavlakos’s RFC as discussed supra,
he also did not err in presenting a question based on that RFC
to the Vocational Expert and relying on the Vocational Expert’s
resulting testimony.
Conclusion
For these reasons, the Acting Commissioner’s motion to
affirm28 is GRANTED and Pavlakos’s motion to reverse and remand
the Acting Commissioner’s decision29 is DENIED.

26

The Clerk of

In passing, Pavlakos cites “Dr. Charron’s notes” as supporting
his position, but fails to indicate those notes’ content or
location in the record. See Plaintiff’s Mem. (doc. no. 9-1) at
17.
27

Id. at 17-18.

28

Document no. 17.

29

Document no. 9.

12

Court shall enter judgment in accordance with this order and
close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge

Dated:
cc:

August 14, 2018

Ruth Dorothea Heintz, Esq.
Sarah E. Choi, Esq.
T. David Plourde, AUSA

13