Bourdeau v. US Social Security Administration, Commissioner
///ORDER denying 10 Motion to Reverse Decision of Commissioner; granting 12 Motion for Order Affirming Decision of Commissioner. The Clerk of the Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(lw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Bourdeau, Jr.,
Case No. 20-cv-793-SM
Opinion No. 2021 DNH 095
Andrew Saul, Commissioner,
Social Security Administration,
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Richard Bourdeau,
Jr., moves to reverse or vacate the Commissioner’s decision
denying his application for Disability Insurance Benefits under
Title II of the Social Security Act.
See 42 U.S.C. § 423, et
The Commissioner objects and moves for an order affirming
For the reasons discussed, claimant’s motion is denied, and
the Commissioner’s motion is granted.
In April of 2018, claimant filed an application for
Disability Insurance Benefits (“DIB”), alleging that he was
disabled and had been unable to work since January 29, 2018.
Claimant was 50 years old at the time and had acquired
sufficient quarters of coverage to remain insured through
December of 2022.
Claimant’s application was denied and he
requested a hearing before an Administrative Law Judge (“ALJ”).
In September of 2019, claimant, his attorney, and an
impartial vocational expert appeared before an ALJ, who
considered claimant’s applications de novo.
month, the ALJ issued his written decision concluding that
claimant was not disabled, as that term is defined in the Act,
at any time prior to the date of his decision.
requested review by the Appeals Council.
That request was
Accordingly, the ALJ’s denial of claimant’s application
for benefits became the final decision of the 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 for Order Reversing Decision
of the Commissioner” (document no. 10).
In response, the
Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 12).
Those motions are
A detailed factual background can be found in claimant’s
statement of material facts (document no. 11) and the
Commissioner’s statement of material facts (document no. 13).
Those facts relevant to the disposition of this matter are
discussed as appropriate.
Standard of Review
“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.
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).
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
then, 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.
See Consolo v.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Parties’ Respective Burdens.
An individual seeking DIB benefits is disabled under the
Act if he or she 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 the 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 Manso-Pizarro v. Secretary of Health &
Human Services, 76 F.3d 15, 17 (1st Cir. 1996); Gray v. Heckler,
760 F.2d 369, 371 (1st Cir. 1985).
If the claimant demonstrates
an 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).
also 20 C.F.R. §§ 404.1512 and 404.1560.
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 claimant’s testimony or that of
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
physical 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).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
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.
See generally Barnhart v. Thomas, 540 U.S. 20, 24
Accordingly, he first determined that claimant had not
been engaged in substantial gainful employment since his alleged
onset of disability: January 29, 2018.
Admin. Rec. at 17-18.
Next, he concluded that claimant suffers from the following
severe impairments: “cardiac condition, status post aortic valve
replacement and coronary artery bypass grafting (CABG)(x2);
obstructive sleep apnea (OSA); and obesity.”
Id. at 18.
the ALJ determined that claimant’s impairments, whether
considered alone or in combination, did not meet or medically
equal any of the impairments listed in Part 404, Subpart P,
Admin. Rec. at 18-19.
Claimant does not contest
any of those findings – at least not clearly and directly.
generally Alston v. Apfel, 187 F.3d 621, 621 (1st Cir. 1999)
(“It is not enough to merely mention a possible argument; a
litigant has an obligation to spell out the argument squarely
See also Claimant’s “Pre-Hearing Memo” dated
September 16, 2019, Admin. Rec. at 769 (conceding that “no
treating source has rendered the opinion he [claimant] meets or
equals a Listing level impairment or impairments.”).
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
light work, subject to the following limitations:
The claimant can lift and/or carry up to 20 pounds
occasionally and up to 10 pounds frequently. He can
sit for up to 6 hours total per 8-hour workday and
stand and/or walk for up to 6 hours total, combined,
per 8-hour workday. He can perform postural
activities no more than occasionally, and requires a
5-minute break every hour, for use of bathroom
Admin. Rec. at 19.
In light of those restrictions, the ALJ
concluded that claimant was not capable of performing any past
relevant work as a gas-service technician or a tank-truck
Id. at 26.
See also Id. at 43-44 (vocational expert’s
testimony about claimant’s work history).
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 exertional and non-exertional limitations, “there are
jobs that exist in significant numbers in the national economy
that the claimant can perform.”
Id. at 26.
ALJ concluded that claimant was not “disabled,” as that term is
defined in the Act, through the date of his decision.
In March of 2018, approximately three months after his
alleged onset of disability, claimant underwent cardiac surgery
- coronary artery bypass grafting (or “CABG”) and valve
replacement - to address diastolic heart failure.
surgery, claimant experienced significant fatigue (likely due,
at least in part, to subsequently-diagnosed obstructive sleep
apnea), nocturia (frequent nighttime urination), and
swelling/fluid retention in his lower legs.
Claimant asserts that the ALJ improperly evaluated the
medical opinion evidence in determining his residual functional
In making that argument, claimant summarizes the
various statements or findings by the ALJ, but he fails to
clearly identify those he believes, whether alone or in
combination, form the basis for remand.
Claimant’s Memorandum (document no. 10-1) at 4-12.
specific assertions that a factual conclusion reached by the ALJ
is not supported by substantial evidence, claimant makes two
First, he says:
[T]he ALJ’s evaluation of the opinion evidence of
record concerning Mr. Bourdeau’s need to elevate his
legs for up to 20% of an 8-hour workday, as indicated
in treating physician Dr. Murakami’s September 2019
opinion, is not supported by substantial evidence and
fails to adequately address the factors of
supportability and consistency as required by the
regulations applicable to this case.
Claimant’s Memorandum (document no. 10-1) at 12.
The possibility that Mr. Bourdeau might look for some
work, possibly including part-time work, in the
absence of any income to avoid losing his home, does
not constitute substantial evidence to support the
ALJ’s finding that Mr. Bourdeau would not need to
elevate his legs for 20% of the workday if he were
trying to sustain full-time work.
Id. at 14.
The thrust of claimant’s argument would, then, seem to be
that the ALJ failed to accurately account for the claimed
requirement that he be afforded the opportunity to elevate his
legs for a significant portion of the workday.
is critical because the vocational expert testified that if
claimant were required to elevate his legs for up to 20% of the
workday, he would be precluded from performing any gainful
Admin. Rec. at 81.
There are two medical source opinions for that limitation.
First, in December of 2018, Sally Jenkins, APRN, noted that
claimant was experiencing edema in his legs and recommended that
he “elevate them in the evening when he is watching TV.”
Rec. at 744.
Subsequently, in September of 2019, Noboru
Murakami, M.D., completed a “Physical Impairment Medical Source
Statement” (Admin. Rec. at 764-68), in which he opined that if
claimant were employed in a sedentary job, he would need to
elevate his legs for 15 minutes at a time during twenty percent
(20%) of the workday.
Id. at 766.
The problem with those two opinions – even if the ALJ had
fully credited them – is that neither undermines the ALJ’s
conclusion that claimant is capable of performing a range of
Nurse Jenkins recommended that claimant elevate his
legs at night, while relaxing at home.
testified that he heeded that advice and even elevates his legs
Admin Rec. at 55.
obtained some relief.
As a consequence, he has
Similarly, the ALJ’s conclusions are not undermined by Dr.
Murakami’s opinion that, if restricted to sedentary work (that
is, work largely performed in a seated position), claimant would
have to elevate his legs for a significant portion of the
The ALJ concluded that claimant could perform a range
of light work – jobs that would not necessarily require claimant
to spend a substantial amount of time seated.
See 20 C.F.R.
§ 404.1567(a) and (b).
On the other hand, there is substantial evidence in the
record supporting the ALJ’s RFC determination.
includes claimant’s ability to live largely alone, perform
household chores, and care for himself, Admin. Rec. at 59-61, as
well as the fact that claimant is not receiving (and has not
sought) any treatment for the swelling in his legs, id. at 70.
See also Id. at 236-39 (claimant’s reported daily activities).
Additionally, following claimant’s surgery, his surgeon,
Mauricio Villavicencio, M.D., and a cardiac nurse practitioner,
Alysia Monaco, agreed that although claimant could not return to
his former job, he could work in a position that involved “less
manual and more administrative or light duty” tasks.
See also Id. at 548 (opinion letter of Dr. Villavicencio
dated June 8, 2018, stating the same).
In May of 2018, Matthew
Gutierrez, M.D., examined claimant at Concord Cardiac Associates
and noted that claimant’s heart rate was normal and rhythm was
regular, his chest was clear, his diastolic chronic heart
failure had been resolved by surgery, and his ventricular
function was normal.
Id. at 539-41.
Dr. Gutierrez concurred
with Dr. Villavicencio’s assessment of claimant’s ability to
perform work-related abilities.
Id. at 539.
In July of 2018, Jonathan Jaffe, M.D., reviewed claimant’s
medical records and completed a “Physical Residual Functional
In it, he concluded that claimant was
capable of performing the exertional requirements of light work.
Admin. Rec. at 100-01.
Although Dr. Jaffe’s opinions predated
some of the medical records presented to the ALJ, his opinions
are consistent with claimant’s later medical records.
court (Barbadoro, J.) has observed:
It can be reversible error for an ALJ to rely on an
opinion of a non-examining consultant who has not
reviewed the full medical record. But the fact that
an opinion was rendered without the benefit of the
entire medical record does not, in and of itself,
preclude an ALJ from giving significant weight to that
opinion. The ALJ may rely on such an opinion where
the medical evidence postdating the reviewer’s
assessment does not establish any greater limitations,
or where the medical reports of claimant’s treating
providers are arguably consistent with, or at least
not clearly inconsistent with, the reviewer’s
Byron v. Saul, No. 18-CV-684-PB, 2019 WL 3817401, at *6 (D.N.H.
Aug. 14, 2019) (citations and internal punctuation omitted).
In summary, then, the record reveals that claimant has
responded well to surgical intervention.
His cardiac condition
is largely resolved and his cardiac function appears to be
See, e.g., Admin. Rec. at 539-41, 550, 562-
63, 570-71, 742-44, 758.
The ALJ adequately explained why he
discounted the two opinions concerning claimant’s need to
elevate his legs.
But, even fully crediting those opinions,
they do not undermine the ALJ’s RFC determination or his
ultimate conclusion that claimant was not disabled at any time
prior to the ALJ’s decision.
Judicial review of the ALJ’s decision is both limited and
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
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
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.
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 Commissioner and the 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 (October 2, 2019).
determination of claimant’s RFC, as well as his stated reasons
for crediting some medical opinions while discounting others,
are well-reasoned and supported by substantial evidence.
For the foregoing reasons, as well as those set forth in
the Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 10) is
denied, and the Commissioner’s motion to affirm his decision
(document no. 12) is granted.
The Clerk of the Court shall
enter judgment in accordance with this order and close the case.
Steven J. McAuliffe
United States District Judge
June 4, 2021
D. Lance Tillinghast, Esq.
Lisa G. Smoller, Esq.
Luis A. Pere, Esq.
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