Gelinas v. US Social Security Administration, Acting Commissioner

Filing 15

///ORDER granting 13 Motion to Affirm Decision of Commissioner; denying 10 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
Richard Gelinas
v.

Civil No. 17-cv-387-JL
Opinion No. 2018 DNH 180

U.S. Social Security
Administration, Acting
Commissioner
ORDER ON APPEAL
Richard Gelinas has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability and disability insurance benefits between the date
he alleged his disability began and the onset date determined by
the administrative law judge (“ALJ”) at the SSA.

The ALJ ruled

that, despite several severe impairments, Gelinas retained the
residual functional capacity (“RFC”) to perform jobs that exist
in significant numbers in the national economy between March 15,
2013, and August 26, 2015, and thus was not disabled during that
period.1

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

The Appeals

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

Gelinas then appealed the

The ALJ determined that Gelinas was disabled beginning on
August 26, 2015.
1

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

See

The Acting Commissioner of the SSA has cross-moved

for an order affirming the decision.

See LR 9.1(c).

After

careful consideration, the court denies Gelinas’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).

“Substantial-evidence review is more

deferential than it might sound to the lay ear:

though

certainly ‘more than a scintilla’ of evidence is required to
meet the benchmark, a preponderance of evidence is not.”

Purdy

v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron

2

Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir.
2003)).
Thus, 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).

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 Gelinas’s request for disability
and disability insurance benefits.
416.920.

See 20 C.F.R. §§ 404.1520,

After determining that Gelinas had not engaged in

substantial gainful activity after the alleged onset of his
disability on March 15, 2013, the ALJ analyzed the severity of

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. 14) is incorporated
by reference.
2

3

his impairments.

At this second step, the ALJ concluded that

Gelinas had the following severe impairments:
spondyloarthropathy with chronic back pain and
radiculopathy; L5-S1 degenerative disc disease with
protrusion; moderate to severe diffuse lumbar spine
facet joint osteoarthritis; gout; diabetes;
hypertension; morbid obesity; status post cerebral
hemorrhage; learning disability; depression; bilateral
knee osteoarthritis with very mild narrowing of
medical joint compartments, left knee flattening of
the lateral femoral condyle with osteophyte off
lateral left tibial plateau; right knee osteophyte
emanating off tibial plateau; DVT (deep vein
thrombosis; right ankle osteoarthritis, Os trigonum
fused to talas, advanced subtalar joint
osteoarthritis; ankle talonavicular and calcaneocuboid
joint osteoarthritis, Achilles and plantar calcaneal
spurs; reading disorder; mild degenerative joint
disease of bilateral hips, right, greater than left.3
At the third step, the ALJ found that Gelinas’s severe
impairments did not meet or “medically equal” the severity of
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.
After reviewing the medical evidence of record, medical
opinions, and Gelinas’s own statements, the ALJ concluded that
he retained the RFC to perform sedentary work, see 20 C.F.R.
§§ 404.1567(a) and 416.967(a), except that he could:
lift up to 20 pounds occasionally, and would only be
able to stand or walk for a total of 2 hours in an 8hour workday and sit for 6 hours, in an 8-hour
3

Admin. Rec. at 21-22.

4

Id. at 22-24.

4

workday. He was limited to occasional postural
maneuvers. He would need to avoid exposure to
extremes of heat or cold, wetness, humidity, excessive
vibrations, and avoid even occasional exposure to
unprotected heights and could not be around dangerous
moving machinery. He retained the mental capacity for
simple, unskilled tasks.5
Finding that, even limited in this manner, Gelinas was able to
perform jobs that exist in significant numbers in the national
economy between his alleged onset date and August 26, 2015, see
20 C.F.R. §§ 404.1566 and 416.966, the ALJ concluded his
analysis and found that Gelinas was not disabled within the
meaning of the Social Security Act during that time period.6
The ALJ then refined Gelinas’s RFC, finding that, beginning
on August 26, 2015, “due to pain and medical treatment,
[Gelinas] would need frequent unscheduled breaks, and would be
off task 25% of the time and miss more than 3 days of work a
month.”7

Given those additional limitations, the ALJ concluded

Gelinas could perform no jobs that exist in significant numbers
in the national economy and thus was disabled.8

5

Admin. Rec. at 24.

6

Admin. Rec. at 32-33.

7

Id. at 30.

8

Id. at 33.

5

Analysis
Gelinas challenges the ALJ’s determination of his
disability onset date.

Specifically, he contends that the ALJ

erred in concluding that he was not disabled between his alleged
onset date of March 15, 2013, and the ALJ’s determined onset
date of August 26, 2015.

He further contends that the ALJ erred

by making that determination without consulting a medical
advisor.

As outlined below, the ALJ did not err on either

front.
“The onset date of disability is the first day an
individual is disabled as defined in the Act and the
regulations.”

Titles II & XVI: Onset of Disability (SSR 83-20),

1983-1991 Soc. Sec. Rep. Serv. 49, at *1 (S.S.A. 1983).

The ALJ

is tasked with determining the claimant’s onset date of
disability.

Id.

Gelinas bears the burden of proving it.

20 C.F.R. § 404.1520; Purdy, 887 F.3d at 9 (claimant bears
burden of proof at first four steps of the five-step process).
“In disabilities of nontraumatic origin,” such as
Gelinas’s, “the determination of onset involves consideration of
the applicant’s allegations, work history, if any, and the
medical and other evidence concerning impairment severity.”
SSR 83-20 at *2.
In determining the date of onset of disability, the
date alleged by the individual should be used if it is
consistent with all the evidence available. When the

6

medical or work evidence is not consistent with the
allegation, additional development may be needed to
reconcile the discrepancy. However, the established
onset date must be fixed based on the facts and can
never be inconsistent with the medical evidence of
record.
Id. at *3.
The ALJ concluded that Gelinas could perform sedentary work
with a variety of limitations until August 26, 2015, the date
Gelinas underwent an examination for lower back pain by Ms.
Stephanie Diamond PA-C, who observed that his back pain had
worsened, and who arranged for him to undergo EMG/NCS testing of
his bilateral lower extremities.

Taking into account Gelinas’s

worsened back pain, the ALJ concluded that Gelinas could not
perform even sedentary work without missing several days a month
after August 26, 2015.

In designating that as Gelinas’s onset

date, the ALJ thoroughly accounted for the medical evidence of
record, relying on the fact that the medical evaluations and
opinions prior to August 26, 2015 all support the conclusion
that Gelinas could perform sedentary work with a variety of
limitations.
Physical limitations.

With respect to Gelinas’s physical

limitations, the ALJ cited a July 31, 2014 functional capacity
evaluation by J. Samson, MS, OTR/L, CWCE, CEAS, who opined that
Gelinas could perform a level of work consistent with sedentary

7

work with occasional postural limitations.9

Similarly,

Dr. Anthony Ippolito, Gelinas’s rheumatologist, indicated in
October 20, 2014, that while Gelinas suffered from arthritic
pain and fatigue, he was able to perform sedentary work with
physical limitations generally consistent with those in the
ALJ’s RFC determination for this period.10
The ALJ also considered the medical opinion of Dr. Steven
Olive, another of Gelinas’s treating physicians, who concluded
that Gelinas could perform work at the sedentary level in
February 2015.

Finally, the ALJ accounted for the State agency

non-examining medical consultant, Dr. Barton Nault, who
concluded on August 19, 2014, that Gelinas could perform light
work with no limitations.

The ALJ discounted that opinion,

affording it little weight for failure to account for Gelinas’s
subjective pain complaints.11
Gelinas challenges the fact that the ALJ discounted both
Samson’s and Dr. Ippolito’s conclusions that Gelinas could only
“occasionally” use his hands and arms.

With respect to Samson,

the ALJ explained that he did so because “it seems the evaluator
only relied on the claimant’s subjective pain complaints” in

9

Admin. Rec. at 826-27.

10

Id. at 1055-56.

11

Id. at 29.

8

drawing that conclusion and because “the claimant was able to
perform well with his hands and he had a normal range of
motion.”12

And he discounted Dr. Ippolito’s conclusion as

inconsistent with the fact that Gelinas’s impairments related to
his back and legs and Dr. Ippolito’s finding of a normal
strength and range of motion.13
Gelinas also contends that, to the extent the ALJ afforded
great weight to a January 7, 2016 opinion by Dr. Ippolito with
respect to the post-August 2015 time period, he ought have
afforded the same weight to that January 7, 2016 opinion with
respect to the period before August 26, 2015.

But, as the ALJ

observed, Dr. Ippolito’s opinions are inconsistent.

He opined

in 2016 that Gelinas’s impairments prevented him from sitting
more than two hours and standing more than four hours, and that
his impairments would make him absent from work more than four
days per month.14

In 2016, he also opined that these impairments

had existed since March 15, 2013.15

In February 2015, by

contrast, Dr. Ippolito opined that Gelinas was capable of a

12

Id. at 27.

13

Id. at 29.

14

Id. at 1219-21.

15

Id. at 1217

9

range of sedentary work.16

The ALJ considered these

inconsistencies and concluded, based on Dr. Ippolito’s
February 2015 statement, that he “did not believe the
limitations began at the claimant’s alleged onset date.”17
Though Gelinas takes issue with the ALJ’s treatment of a
small aspect of both Samson’s and Dr. Ippolito’s reports, he
points to no other evidence in the record, unaddressed by the
ALJ, that contradicts those conclusions.

Though these reports

may support the alternative conclusions proposed by Gelinas,
they also adequately support the ALJ’s conclusions.

The court

will not disturb the ALJ’s findings under these circumstances.
Irlanda Ortiz, 955 F.2d at 769.
Mental limitations.

With respect to Gelinas’s mental

limitations, the ALJ relied on an August 12, 2014 consultative
psychological examination by Dr. Thomas F. Burns, PhD, and a
January 23, 2015 psychiatric evaluation by Dr. James Kates, MD.
The ALJ accorded Dr. Burns’s opinion weight as “consistent with
the claimant’s ability to perform unskilled tasks”18 and noted
that “there is nothing in [Dr. Kates’s] opinion to suggest that
[Gelinas] would not be able to perform unskilled mental tasks

16

Id. at 1055-57.

17

Id. at 31.

18

Admin. Rec. at 27.

10

due to his mental impairment.”19

Finally, the ALJ accounted for

the state agency non-examining psychological consult, Dr. Laura
Landerman, whose mental RFC assessment he found consistent with
the medical record and Dr. Burns’s conclusions.
The ALJ discounted Dr. Burns’s and Dr. Landerman’s
conclusions that Gelinas would not be able to read at all.

In

doing so, he noted that Dr. Burns did not test Gelinas’s
literacy and relied only on self-reports inconsistent with the
fact that Gelinas completed high school with passing grades in
English, and that Dr. Landerman relied on Dr. Burns’s report.20
The ALJ concluded that, instead, Gelinas “is capable of very
basic reading and understanding simple instructions.”21
Gelinas argues that the ALJ erroneously rejected
Dr. Burns’s conclusion that Gelinas was illiterate.
Specifically, he contends that the fact that he completed high
school with a passing grade in English does not conclusively
establish his literacy.

But it need not do so.

Even on that

basis, the ALJ concluded only that Gelinas was “capable of very
basic reading and understanding simple instructions.”22

19

Id. at 28.

20

Id.

21

Id. at 29.

22

Id.

11

That

conclusion is consistent with Gelinas’s representation to
Dr. Kates that he “could only read at the first grade level.”23
Here, again, some evidence in the record -- specifically,
Gelinas’s own testimony -- may support an alternative
conclusion; but where the ALJ’s is supported by substantial
evidence, as it is here, the court will not disturb it.24
Irlanda Ortiz, 955 F.2d at 769.
Medical advisor.

Finally, Gelinas argues that the ALJ

erred by establishing an August 26, 2015 disability onset date
without consulting a medical advisor.25

“Where ‘precise evidence

is not available’ and thus there is a ‘need for inferences,’ SSR
83-20 instructs the ALJ to call a medical advisor.”

Fischer v.

Colvin, 831 F.3d 31, 35 (1st Cir. 2016) (quoting SSR 83-20, 1983
WL 31289, at *3) (alterations omitted).

Here, however, as in

Fischer, “[t]he ALJ did not rely upon the absence of medical
evidence but rather the existence of ‘precise’ medical evidence

23

Id. at 904.

Gelinas suggests that the ALJ erred because he did not contact
Gelinas’s former employer to obtain more evidence concerning his
limited ability to read and write. See Plaintiff’s Mem. (doc.
no. 10-1) at 5. But the burden of proving his limitations at
this stage rests on Gelinas, not the ALJ. 20 C.F.R. § 404.1520;
Purdy, 887 F.3d at 9. In any event, evidence of a limited
ability to read and write would be consistent with the ALJ’s
conclusion that Gelinas was capable only of “very basic
reading.”
24

25

Plaintiff’s Mem. (doc. no. 10-1) at 11.

12

. . . when concluding that [Gelinas’s] impairments had not
reached disabling severity prior to” August 26, 2015.

Here, the

ALJ had the benefit of, and relied on, several medical opinions,
issued prior to that date, to the effect that Gelinas could
perform a range of sedentary work.

“This precise medical

evidence eliminated the need for the ALJ to infer that
[Gelinas’s] onset date preceded” August

26, 2015.

Id.

Conclusion
For these reasons, the Acting Commissioner’s motion to
affirm26 is GRANTED and Gelinas’s motion to reverse and remand
the Acting Commissioner’s decision27 is DENIED.

The Clerk of

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

Joseph N. Laplante
United States District Judge
Dated:
cc:

September 6, 2018

D. Lance Tillinghast, Esq.
Robert J. Rabuck, AUSA

26

Document no. 13.

27

Document no. 10.

13