UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Andrew Dennis Collard, Claimant

v. Case No. 13-cv-446-SM Opinion No. 2015 DNH 001 Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant, Andrew Collard, moves to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act, 42 U.S.C. §§ 423 and 1381- 1383c (the “Act”). 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 late 2010 and early 2011, claimant filed applications for DIB and SSI, alleging that he had been unable to work since September 30, 2010, due to a heart condition, emphysema, depression, and anxiety. Those applications were denied and claimant requested a hearing before an Administrative Law Judge (“ALJ”). In June of 2012, claimant, his attorney, and a vocational expert appeared before an ALJ, who considered claimant’s application de novo. Five weeks later, 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. The Appeals Council denied claimant’s request for review, making the ALJ’s denial of claimant’s applications 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 for Order Reversing the Decision of the Commissioner” (document no. 9). In response, the Acting Commissioner filed a “Motion for 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 statement of stipulated facts which, because it is part of the court’s record (document no. 13), 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. See 42 U.S.C. §§ 405(g), 1383(c)(3). 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.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). 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 and/or SSI 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). See also 42 U.S.C. § 1382c(a)(3). 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 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: 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). See also 42 U.S.C. § 1382c(a)(3)(B). 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. See generally Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, he first determined that claimant had not been engaged in substantial gainful employment since his alleged onset of disability: September 30, 2010. Admin. Rec. at 20. Next, he concluded that claimant suffers from several “severe” impairments, in that they “impose significant limitations on the claimant’s ability to perform basic work activities.” Id. They are: “depression; panic disorder without agoraphobia; gambling addition; alcohol abuse; marijuana abuse; atrial fibrillation; emphysema; obstructive pulmonary disease (COPD) with dyspnea; obstructive sleep apnea (OSA); morbid obesity and chronic back pain.” Id. Nevertheless, the ALJ determined that those impairments, regardless of whether they were considered alone or in combination, did not meet or medically equal any of the impairments listed in Part 404, Subpart P, Appendix 1. Admin. Rec. at 21-22. Claimant does not challenge any of those findings.

Next, the ALJ concluded that claimant retained the residual functional capacity (“RFC”) to perform the exertional demands of a range of sedentary work, though he has the ability to lift up to 50 pounds.^[1] He noted, however, that claimant:

will need an hourly option to sit/stand; he will need two additional five minute breaks every eight hours; he can frequently push/pull; he can frequently perform foot control operations; he can never climb ropes, ladders, or scaffolds; he can never crawl or kneel; he can rarely crouch, stoop, [or] climb ramps/stairs; he can occasionally balance; he can frequently reach and overhead reach; he must avoid extreme cold, extreme heat; he must avoid all exposure to wetness, humidity, fumes, odors, dust, gases, poorly ventilated areas; [he] must avoid concentrated exposure to chemicals; he must avoid moving machinery and unprotected heights; he is limited to simple, routine, and repetitive tasks; he must work in a low stress environment with only occasional decision-making; he must have no interaction with the public; he is limited to only occasional interaction with co-workers. Finally, work cannot be performed in wide-open areas.

Admin. Rec. at 23. In light of those restrictions, the ALJ concluded that claimant was not capable of returning to any of his prior jobs. Id. at 27.

Finally, the ALJ considered whether there were any jobs in the national economy that claimant might perform. He presented a hypothetical scenario to the vocational expert, involving a worker with the above-listed limitations, and asked whether there are jobs in the national economy that such an individual can perform. The vocational expert opined that there are such jobs, and gave several representative examples. Based upon that testimony, the ALJ concluded that, notwithstanding claimant’s exertional and non-exertional limitations, he “is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id. at 29. Consequently, the ALJ concluded that claimant was not “disabled,” as that term is defined in the Act, through the date of his decision.^[2] Discussion

Claimant challenges the ALJ’s decision on two grounds, asserting that he erred: (1) by improperly discounting claimant’s subjective complaints of disabling pain and finding claimant’s testimony to be less than entirely credible; and (2) by failing to consider all relevant medical evidence in determining claimant’s residual functional capacity.

I. Claimant’s Credibility. Claimant challenges the ALJ’s determination that his “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the [ALJ’s] functional capacity assessment.” Admin. Rec. at 24. Specifically, claimant says the ALJ failed to account for the disabling pain claimant says he experiences as a result of atrial fibrillation; failed to cite specific medical evidence to support his findings concerning claimant’s ability to perform various daily activities; neglected to acknowledge the side-effects associated with claimant’s failure to regularly use his CPAP machine; and drew improper inferences about claimant’s credibility based upon his “destructive behavior” (in particular his alcohol and tobacco use).

When assessing a claimant’s credibility, the ALJ “must consider the entire case record and give specific reasons for the weight given to the individual’s statements.” SSR 96-7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 WL 374186 *4 (July 2, 1996). Factors the ALJ should consider include the following:

The medical signs and laboratory findings;

Diagnosis, prognosis, and other medical opinions provided by treating or examining physicians or psychologists and other medical sources; and

Statements and reports from the individual and from treating or examining physicians or psychologists and other persons about the individual’s medical history, treatment and response, prior work record and efforts to work, daily activities, and other information concerning the individual’s symptoms and how the symptoms affect the individual’s ability to work.

Id. at *6. But, “[t]he credibility determination by the ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.” Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192, 195 (1st Cir. 1987) (citation omitted).

In support of his conclusion that some of claimant’s allegations were less than entirely credible, the ALJ relied upon a constellation of factors, including:

inconsistent with reports he made to treating medical professionals all serve to undermine his credibility.

938-42. Viewed in isolation, that report provides fairly compelling support for claimant’s assertions of disability: it is from a treating source, see generally 20 C.F.R. § 404.1527(c)(2), and in it Dr. Malonso opines that claimant’s impairments “constantly” interfere with his attention and concentration; claimant can “occasionally” lift up to 20 pounds, but he cannot lift anything on a “frequent” basis; claimant is incapable of working at any job that requires him to stand for any period of time; claimant can sit or stand/walk for “less than 2 hours” in total; and, “while engaging in occasional standing/walking,” claimant would need to use a cane or other assistive device.

Moreover, on the same day he completed his Medical Source Statement - June 28, 2012 - Dr. Malonso examined claimant and reported that while he “remains limited by the COPD” (at least in part because he continues to smoke), claimant “denied angina, claudication, lightheadedness and myalgias.” Id. at 917. He also noted that, with regard to claimant’s atrial fibrillation, his heart rate was “controlled, appears to be in NSR [normal sinus rhythm],” that claimant had no extra sounds or murmurs, and that his heart rate was normal. Id. at 918. In short, those records suggest that claimant was managing his chronic medical problems reasonably well (with the exception of his continued smoking and obesity/dietary issues); nothing suggests the type or level of impairment that is described in Dr. Malonso’s Medical Source Statement.

nourished, well developed and hydrated,” and shows “no unusual anxiety or evidence of depression.” Id. at 921.

Finally, claimant points to a conflict in the evidence he claims the ALJ never properly resolved. Specifically, he notes that there is conflicting evidence about whether he retains the ability to lift up to 50 pounds (as he suggested at the hearing, see Admin. Rec. at 46-47). But, the court need not resolve that issue. Even if the ALJ erred (it is not clear that he did), and even if claimant is capable of lifting only 20 pounds (as found by James Trice, M.D., Admin. Rec. at 417; see also id. at 939), such an error would have been harmless. Two of the representative jobs the ALJ concluded claimant could perform are “light” positions (collator operator and electronic sub- assembler). The third - tube operator - is a “sedentary” position. See Id. at 29. All three jobs are consistent with an ability to occasionally lift 20 pounds and frequently lift 10 pounds; none would require claimant to have the ability to lift 50 pounds. See generally supra, note 2 (discussing the lifting requirements specified in the ALJ’s hypothetical question to the vocational expert).

Rather, the court’s 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 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.”).

credibility determination and his decision to discount the opinions of Dr. Malonso are well-reasoned and well-supported by substantial evidence.