Cohen v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Lee Cohen
v. Case No. 16-cv-385-SM
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Jeffrey Cohen moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423. The
Acting Commissioner, in turn, moves for an order affirming her
decision. For the reasons that follow, the decision of the
Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”), should be affirmed.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
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supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
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955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 12, is part of the court’s
record and will be summarized here, rather than repeated in
full.
In April of 2013, Cohen presented to his primary care
provider (“PCP”) with a tremor in his right hand and arm. His
PCP referred him to a neurologist. After examining Cohen, the
neurologist gave the following impression:
This individual has a long history of decreased
sense of smell. He now has micrographia, stooped
posture, abnormal gait, bradykinesia and paucity of
movement, a course right hand tremor and cogwheel
rigidity. These are all signs and symptoms of
Parkinson’s disease or parkinsonism.
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Administrative Transcript (hereinafter “Tr.” 261).1 Cohen’s
Parkinson’s disease has been treated with medication.
In March 2014, Cohen was seen by Dr. George Neal, who
performed a neurology consultative examination at the request of
the Social Security Administration (“SSA”). Under the heading
“Impairments,” Dr. Neal wrote:
The physical examination does not reveal physical
findings which would be indicative of significant
impairments. By self-report, he has no limitation in
sitting, lifting, carrying or bending. He can stand
for an unspecified duration. He does report
limitation in walking for one-half hour or to maximum
one-half mile.
Tr. 302-03.
Also in March 2014, Dr. Jonathan Jaffe, a state agency
consulting physician, provided an assessment of Cohen’s residual
functional capacity (“RFC”),2 based upon a review of Cohen’s
medical records. In his assessment, Dr. Jaffe opined that Cohen
could lift and/or carry 10 pounds frequently and 20 pounds
1 Micrographia is “a dysgraphia in which handwriting is tiny
or decreases in size from normal to minute, seen in
parkinsonism.” Dorland’s Illustrated Medical Dictionary 1159
(32d ed. 2012). Bradykinesia is “[a] decrease in spontaneity
and movement.” Stedman’s Medical Dictionary 250 (28th ed.
2006). Cogwheel rigidity is “rigidity of muscle that gives way
in a series of little jerks upon being passively stretched,
analogous to the ratcheting movement when a spring-loaded rod
drops into the successive notches of a cog.” Dorland’s, supra,
at 1647.
2 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. § 404.1545(a)(1).
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occasionally, that he could stand and/or walk (with normal
breaks) for about six hours in an eight-hour workday, could sit
(with normal breaks) for about six hours in an eight-hour work
day, and could push and/or pull the same amount he could lift
and/or carry. With respect to postural limitations, Dr. Jaffe
opined that Cohen could only occasionally climb ramp/stairs,
climb ladders/ropes/scaffolds, balance, stoop, kneel, crouch, or
crawl. Finally, Dr. Jaffe identified no manipulative, visual,
communicative, or environmental limitations.
In addition to the report of Dr. Neal’s consultative
examination and Dr. Jaffe’s RFC assessment, the record also
includes three medical source statements describing Cohen’s
ability to do physical work related activities, each completed
by the same treating physician, Dr. Priya Shastri. Dr. Shastri
is a neurologist who first began seeing Cohen in September 2013.
Dr. Shastri completed her first medical source statement in
July 2014. In it, she opined that Cohen could lift and carry up
to ten pounds continuously, 11 to 20 pounds frequently, and 21
to 50 pounds occasionally, but could never lift or carry more
than 50 pounds. She further opined that Cohen could sit for two
hours at a time without interruption and for five hours in an
eight-hour workday, could stand for one hour at a time and for
three hours in an eight-hour workday, and could walk for one
hour at a time and for two hours in an eight-hour workday. She
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also indicated that Cohen could reach, handle, finger, feel, and
push/pull with his dominant right hand frequently and with his
non-dominant left hand continuously, and also indicated that he
could operate foot controls with his right foot frequently and
with his left foot continuously. With regard to postural
activities, Dr. Shastri stated that Cohen could frequently climb
stairs and ramps, climb ladders or scaffolds, balance, stoop,
kneel, crouch, and crawl. Finally, she opined that Cohen could
never tolerate unprotected heights, moving mechanical parts,
extreme cold, or extreme heat, could occasionally tolerate dust,
odors, fumes, pulmonary irritants, and vibrations, could
frequently tolerate humidity and wetness, and could continuously
tolerate operating a motor vehicle.
In her second medical source statement, completed in
November 2014, Dr. Shastri identified the same limitations as
she had in July, with the following exceptions. She reduced
Cohen’s capacity for reaching, handling, fingering, feeling, and
pushing/pulling with his dominant right hand from frequent to
occasional. She also reduced his tolerance for operating a
motor vehicle from continuous to occasional. In support of her
opinion on Cohen’s capacity for sitting, standing, and walking,
Dr. Shastri wrote:
He has increased tone in [right] leg which limits his
ability to walk. He suffers from fatigue from the
[P]arkinson’s disease and the sleep disturbances
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associated [with] Parkinson’s [disease].
Tr. 347.
Finally, in her third medical source statement, completed
in March 2015, Dr. Shastri found Cohen to me more limited than
he had been four months previously. Specifically, she reduced
his capacity for sitting in an eight hour work day from five
hours to four, reduced his capacity for standing from three
hours to one, and reduced his capacity for walking from two
hours to one. In support of her opinion on Cohen’s capacity for
sitting, standing, and walking, Dr. Shastri wrote:
He has increased tone in [right] leg which limits his
ability to walk. He suffers from fatigue from the
Parkinson’s disease and the sleep disturbances
associated with Parkinson’s. He has to nap frequently
& often nods off while sitting. His drowsiness
constantly impairs his concentration and his ability
to drive.
Tr. 323.
Cohen received a hearing on his claim before an ALJ. At
the hearing, the ALJ asked a vocational expert (“VE”) to
consider
a hypothetical individual of the same age, education,
and work background as the claimant [who] is capable
of performing work at the light level [and] is limited
to occasional climbing of ramps and stairs, ladders,
ropes, and scaffolds, balancing, stooping, kneeling,
crouching, and crawling.
Tr. 59. According to the VE, such a person could perform
claimant’s past work as a sales manager and as a card player as
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that work is usually performed, but could not perform those jobs
as Cohen had actually performed them. The VE further testified
that her answer would be the same if the exertional level were
reduced from light to sedentary. But, she also testified that
such a person could not perform Cohen’s past work if he or she
“would be expected to be off-task 15 to 20 percent of a typical
workday or typical workweek due to the effects of fatigue.” Id.
at 60.
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairment:
Parkinson’s Disease (20 CFR 404.1520(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
. . . .
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except he can [only]
occasionally climb ladders, ropes, scaffolds, ramps,
and stairs, balance, stoop, kneel, crouch, and crawl.
. . . .
6. The claimant is capable of performing past
relevant work as a sales manager and card player.
This work does not require the performance of work-
related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565).
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Tr. 14, 18.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question
in this case is whether the ALJ correctly determined that Cohen
was not under a disability from April 5, 2013, through July 31,
2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step process. See 20 C.F.R. §
404.1520.
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
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Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the claimant or other witness; and
(3) the [claimant]’s educational background, age, and
work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Cohen’s Claims
Cohen appears to claim that the ALJ erred by: (1) failing
to determine, at Step 3, that his Parkinson’s disease satisfied
the criteria for a listed impairment; (2) making a faulty
assessment of his RFC; and (3) determining, at Step 4, that he
was capable of performing his past relevant work. The ALJ
committed no reversible error.
1. Step 3
Cohen appears to claim that the ALJ erred by failing to
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determine that his Parkinson’s disease met the conditions for
that disorder that are set out in the social security
regulations. The court does not agree.
The social security regulations identify, as a listed
impairment:
Parkinsonian syndrome with the following signs:
Significant rigidity, brady kinesia, or tremor in two
extremities, which, singly or in combination, result
in sustained disturbance of gross and dexterous
movements, or gait and station.
20 C.F.R. Pt. 404, Subpt. P., App. 1, Listing 11.06.
After reviewing Cohen’s medical records, Dr. Jaffe
determined that while Cohen’s Parkinson’s disease was a
medically determinable impairment, its severity did not rise to
the level required to meet Listing 11.06. In an office note
dated March 23, 2015, which Dr. Shastri prepared on the same day
she completed her third medical source statement, she had this
to say about her neurological examination of Cohen:
Movement disorder exam: Some mild hypophonia and
hypomimia, no evidence of a rest tremor, trace
increased tone in right upper extremity, no
cogwheeling. Slight increased tone in right lower
extremity, and trace tone in the left lower extremity,
slight bradykinesia with rapid alternating movements
in his right upper extremity. No brady kinesia in the
lower extremities. Gait: He is able to rise out of a
chair without assistance. Good posture, slight
decreased right arm swing.
Tr. 334 (emphasis added).3
3 Hypophonia is “[a]n abnormally weak voice due to
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While claimant points to various medical records that
mention one or more of the signs mentioned in Listing 11.06,
none of them appear to document either “[s]ignificant rigidity,
brady kinesia, or tremor in two extremities,” Listing 11.06
(emphasis added), or “sustained disturbance of gross and
dexterous movements, or gait and station,” id. (emphasis added),
which are required for a claimant’s Parkinson’s disease to meet
or medically equal the severity of Listing 11.06. Moreover,
even if claimant had identified a medical record establishing
that Cohen’s Parkinson’s disease satisfied Listing 11.06, Dr.
Shastri’s March 23, 2015, office note plainly does not document
a case of Parkinson’s that satisfies Listing 11.06,4 and it is
for the ALJ to resolve conflicts in the evidence. See Irlanda
Ortiz, 955 F.2d at 769. In sum, the ALJ did not err by
determining that Cohen’s Parkinson’s disease did not meet
Listing 11.06 because his determination is supported by
substantial evidence.
incoordination of the muscles concerned in vocalization.”
Stedman’s, supra note 1, at 935. Hypomimia is “a “lack of
facial expression with reduced blinking.” Dorland’s, supra note
1, at 903.
4 Specifically, she reports bradykinesia that is “slight”
rather than “significant” and that is confined to a single
extremity. She also reports “no evidence of a rest tremor.”
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2. The ALJ’s RFC Assessment
Cohen next claims that the ALJ erred in formulating his RFC
because he failed to: (1) give appropriate weight to Dr.
Shastri’s third medical source statement; and (2) incorporate
limitations in his RFC based upon the testimony he gave at his
hearing. The court considers each argument in turn.
a. Medical Opinions
According to Cohen, the ALJ committed reversible error by
giving great weight to the opinions of Drs. Neal and Jaffe and
discounting the opinion expressed in Dr. Shastri’s third medical
source statement. The court does not agree.
As a general rule, the SSA gives the greatest weight to
medical opinions from a claimant’s treating physician(s). See
20 C.F.R. § 404.1527(c). Specifically,
[i]f [an ALJ] find[s] that a treating source’s opinion
on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well–supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case
record, [the ALJ] will give it controlling weight.
20 C.F.R. § 404.1527(c)(2). Cohen does not appear to claim that
the ALJ should have given controlling weight to Dr. Shastri’s
third opinion and, indeed, such a claim would not succeed. Not
only is Dr. Shastri’s third opinion inconsistent with the
opinions of Drs. Neal and Jaffe, it is also inconsistent with
her own previous opinions, which the ALJ correctly pointed out.
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Because the ALJ did not give Dr. Shastri’s third opinion
controlling weight, he was obligated to determine the amount of
weight to give that opinion by considering: (1) the length of
Cohen’s treatment relationship with Dr. Shastri and the
frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the supportability of Dr. Shastri’s
opinion; (4) the consistency of the opinion with the record as a
whole; (5) Dr. Shastri’s medical specialization; and (6) any
other factors that may support or contradict the opinion. See
20 C.F.R. §§ 404.1527(c)(2)-(6). In his decision, the ALJ
discounted Dr. Shastri’s third opinion because: (1) it was
inconsistent with her two previous opinions; (2) Dr. Shastri
provided little explanation for the diminution of capacity to
which she opined in her third opinion; and (3) that opinion was
not supported by either Dr. Shastri’s treatment notes or
claimant’s self reporting to Dr. Shastri. The court concludes
that the ALJ fulfilled his obligation, under 20 C.F.R. §
404.1527(c)(2), to provide good reasons for his decision to give
little weight to Dr. Shastri’s third opinion.
As a preliminary matter, the court notes that the ALJ
acknowledged Dr. Shastri’s specialization in neurology, see 20
C.F.R. § 1527(c)(5), and described the scope of her treatment
relationship with Cohen, see 20 C.F.R. §§ 404.1527(c)(2)(i)-
(ii). Beyond that, the court can find no fault with the ALJ’s
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reliance upon the discrepancies between Dr. Shastri’s third
opinion and the two opinions she had previously given.
In November 2014, Dr. Shastri opined that Cohen had
exertional abilities that were fully consistent with the
capacity to perform light work for eight hours a day. See 20
C.F.R. § 404.1567(b) (setting out the exertional requirements
for light work). In March 2015, in her third opinion, Dr.
Shastri opined that Cohen still had an ability to lift and/or
carry that was consistent with light work, but was only able to
sit, stand, and walk for a total of six hours in an eight hour
workday, down from the ten hours of sitting, standing, and
walking she said he could do back in November. But, in the
treatment note she wrote on the same day she wrote her third
opinion, Dr. Shastri said:
Since last seeing me in November, Mr. Cohen feels his
Parkinson’s is not significantly worsened. He
continues to notice fatigue during the day, and
sometimes he will have to take frequent naps.
. . . .
At this point, his exam looks generally stable. . . .
The fatigue I feel is secondary to the Mirapex;
however, the Mirapex continues to provide him with
symptomatic benefit with other symptoms of Parkinson
disease. In the future if fatigue continues to be an
issue, I will consider starting selegiline for both
symptomatic benefit as well as some neuro protection,
as well as some energizing benefit.
Tr. 334-35.
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Dr. Shastri’s treatment note provides substantial evidence
for the ALJ’s decision to give little weight to her third
opinion. In that note, Dr. Shastri reported that Cohen told her
that his symptoms had not worsened since she had opined that he
was capable of performing light work on a full-time basis. She
also reported that, based upon her examination, his condition
was “generally stable.”5 Thus, there is nothing in that note to
support the increased limitations on sitting, standing, and
walking that Dr. Shastri included in her third opinion.
Moreover, her note attributed Cohen’s fatigue to his medication
rather than his Parkinson’s disease, and indicated that she had
a plan to solve that problem with a change in medication, if
necessary. In sum, because Dr. Shastri’s treatment note does
not support the reduction in capacity that she reported in her
third opinion, the ALJ did not err by giving limited weight to
that opinion.6
5 Those reports, in turn, undermine claimant’s argument that
the ALJ was obligated to credit Dr. Shastri’s third opinion
because of the progressive nature of Parkinson’s disease.
6 In an effort to add weight to Dr. Shastri’s third opinion,
claimant points to a letter that Dr. Shastri wrote in July 2015,
in which she stated that her third statement “is most accurate.”
Tr. 353. But that is all the letter says; Dr. Shastri does not
indicate why her third opinion is more accurate than the other
two or identify any contemporaneous medical evidence that makes
it so. Accordingly, her letter has little persuasive value.
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b. Claimant’s Testimony
Cohen also claims that the ALJ’s assessment of his RFC is
flawed because the ALJ mishandled the testimony he offered at
his hearing.7 Claimant’s argument on this point is confusing at
best. He hints at, but does not expressly articulate several
different theories: (1) the ALJ completely ignored his
testimony; (2) the ALJ considered his testimony but incorrectly
weighed that evidence against other evidence in the record; and
(3) the ALJ improperly determined that his statements about his
symptoms were not entirely credible. Because the ALJ expressly
cited claimant’s testimony, see Tr. 15, and assessed its
credibility, see id., claimant’s argument that the ALJ ignored
his testimony necessarily fails. And given that “the resolution
of conflicts in the evidence is for the [acting Commissioner],
not the courts,” Irlanda Ortiz, 955 F.2d at 769, claimant’s
second argument is equally infirm. That leaves his ill
developed argument that the ALJ improperly assessed the
credibility of his testimony about his symptoms.
At one point in his motion, claimant notes the ALJ’s
finding that his “statements concerning the intensity,
7 In point of fact, some of the allegedly mishandled
testimony was not testimony at all but, rather, is drawn from
Cohen’s counsel’s opening statement. See Cl.’s Mot. (doc. no.
9) 15; Tr. 31-32.
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persistence and limiting effects of [his] symptoms [were] not
entirely credible.” Tr. 15. But for reasons that are unclear,
while the ALJ expressly stated that he considered claimant’s
symptoms in light of Social Security Ruling (“SSR”) 96-7p,8 Tr.
14, which is titled “Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s
Statements,” 1996 WL 374186 (S.S.A. July 2, 1996), claimant’s
motion does not cite SSR 96-7p. Nor does claimant argue that
the ALJ misanalysed the seven factors listed in SSR 96-7p “that
the adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an
individual’s statements.” Id. at *3. Rather, after mentioning
the ALJ’s credibility assessment, claimant’s motion takes a
strange turn; it segues and ultimately transforms into a
critique of the ALJ’s weighing of the medical opinions, an issue
the court has already addressed. However, even assuming that
claimant actually intends to make a proper challenge to the
ALJ’s assessment of the credibility of his testimony about his
8 After the ALJ issued his decision on Cohen’s claim, SSR
96-7p was superseded by SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar.
16, 2016. But “[b]ecause the ALJ issued his decision while SSR
96-7p was in effect, the court evaluates the ALJ’s credibility
assessment under that regulation.” Natsis v. Berryhill, No. 16-
cv-063-LM, 2017 WL 1032258, at *3 n.3 (D.N.H. Mar. 16, 2017)
(quoting Regaldo v. Colvin, No. 15-cv-299-PB, 2016 WL 4775525,
at *8 (D.N.H. Sept. 14, 2016)).
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symptoms, such a challenge would fail.
According to applicable guidance from the SSA, “[a] symptom
is an individual’s own description of his or her physical or
mental impairment(s).” SSR 96-7p, 1996 WL 374186, at *2.
However, “an individual’s statement(s) about his or her symptoms
is not in itself enough to establish the existence of a physical
or mental impairment or that the individual is disabled.” Id.
When “symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness,” id., are alleged, and must be
evaluated by an ALJ, SSR 96-7P sets out
a specific staged inquiry that consists of the
following questions, in the following order: (1) does
the claimant have an underlying impairment that could
produce the symptoms he or she claims?; (2) if so, are
the claimant’s statements about his or her symptoms
substantiated by objective medical evidence?; and (3)
if not, are the claimant’s statements about those
symptoms credible?
Hersey v. Colvin, No. 16–cv–068–JL, 2016 WL 6476956, at *2
(D.N.H. Nov. 2, 2016) (quoting Comeau v. Colvin, No. 12-cv-478-
JL, 2013 WL 5934308, at *8 (D.N.H. Nov. 1, 2013)).
If and when an adjudicator reaches the credibility
question, then he or she must resolve it by considering the
following evidence:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
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3. Factors that precipitate and aggravate the
symptoms;
4. The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, the individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s
functional limitations and restrictions due to pain or
other symptoms.
SSR 96–7p, 1996 374186, at *3.
Finally, as Judge McCafferty explained in a recent
decision:
An ALJ’s credibility determination must be
supported by substantial evidence, see Irlanda Ortiz,
955 F.2d at 769, and “is entitled to deference,
especially when supported by specific findings,”
Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st
Cir. 1987) (citing Da Rosa v. Sec’y of HHS, 803 F.2d
24, 26 (1986)). That said, an ALJ’s “determination or
decision must contain specific reasons for the finding
on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make
clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that
weight.” SSR 96–7p, 1996 WL 374186, at *2 (emphasis
added). In other words, “[i]t is not sufficient for
the adjudicator to make a single, conclusory statement
that ‘the individual’s allegations have been
considered’ or that ‘the allegations are (or are not)
credible.’” Id. To perform a proper discussion and
analysis, the ALJ “must identify what testimony is not
credible and what evidence undermines the claimant’s
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complaints.” Balaguer v. Astrue, 880 F. Supp. 2d 258,
268 (D. Mass. 2012) (quoting Bazile v. Apfel, 113 F.
Supp. 2d 181, 187 (D. Mass. 2000); citing Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
Young v. Colvin, No. 13-cv-551-LM, 2014 WL 5605082, at *5
(D.N.H. Nov. 4, 2014).
The ALJ in this case performed a credibility assessment
that complies fully with all of the principles described above.
First, he devoted a paragraph to identifying the specific
testimony he was considering, which included testimony about
fatigue and decreased concentration. Then he determined “that
the claimant’s medically determinable impairment could
reasonably be expected to cause some of the alleged symptoms.”
Tr. 15. But before determining that “the medical records do not
support the severity of the symptoms alleged,” Tr. 17, the ALJ
devoted nearly two pages to an analysis of those records,
specifically identifying the evidence that undermined claimant’s
statements. Finally, at the third stage in the inquiry, the ALJ
determined that the credibility of claimant’s statements about
his symptoms was undermined by a number of specific factors
including his daily activities and the fact that his “fatigue
was not severe enough at [his] most recent [doctor] visit to
warrant an immediate medication change.” Tr. 17. To conclude,
the ALJ’s credibility analysis follows exactly the format
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required, and provides both specific reasons and substantial
evidentiary support. Nothing more was required.
3. Step 4
At step four, the ALJ relied upon the testimony of the VE
to determine that claimant had the RFC to perform his past work.
Cohen claims that the ALJ’s Step 4 finding is erroneous for two
reasons, but neither of his claims is meritorious.
First, claimant argues that the VE’s testimony does not
count as substantial evidence to support the ALJ’s decision
because the VE’s testimony was given in response to a
hypothetical question from the ALJ that incorporated an RFC that
did not accurately describe his limitations. That argument is
based upon a correct principle of law, i.e., that “an ALJ’s step
[4 or] 5 determination is not based upon substantial evidence if
the hypothetical question the ALJ asks a VE erroneously omits
relevant limitations,” Gillen v. Colvin, No. 16-cv-59-JL, 2017
WL 775785, at *8 (D.N.H. Feb. 28, 2017) (citing Marshall v.
Colvin, No. 14-cv-239-PB, 2015 WL 248615, at *4 (D.N.H. Jan. 20,
2015); Arocho v. Sec’y of HHS, 670 F.2d 374, 375 (1st Cir.
1982)). However, that principle has no application in this case
because the ALJ did not err in the way he handled either Dr.
Shastri’s third opinion or claimant’s testimony. Accordingly,
the ALJ’s hypothetical question did not omit any relevant
limitations, which means that the VE’s response to that question
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qualifies as substantial evidence to support the ALJ’s Step 4
finding.
Claimant also makes the following argument concerning the
ALJ’s Step 4 finding:
In addition, the ALJ improperly relied on the
vocational evidence as supporting that plaintiff could
perform his past relevant work. The vocational expert
clearly testified that within the ALJ’s hypothetical,
the plaintiff could perform past relevant work as
generally performed, but not as actually had been
performed by plaintiff. There was no vocational
evidence supporting that plaintiff could perform his
past relevant work as it had actually been performed;
thus, the [Acting] Commissioner did not meet her
burden.
Cl.’s Mot. (doc. no. 9) 12-13 (emphasis added, citation to the
record omitted). The problem with that argument is that a
claimant’s ability to perform his past relevant work as actually
performed in not the only test for determining whether he can
perform his past relevant work. Rather, “a claimant retains the
capacity to perform his or her past relevant work . . . [if he
or she] retains the capacity to perform the functional demands
and job duties of the job as ordinarily required by employers
throughout the national economy.” SSR 82-61, 1982 WL 31387, at
*1-2 (S.S.A. 1982); see also Santiago v. Sec’y of HHS, 944 F.2d
1, 5 n.1 (1st Cir. 1991) (“when the demands of the particular
job which claimant performed in the past cannot be met, if the
claimant has the capacity to meet the functional demands of that
occupation as customarily required in the national economy, then
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a finding of non-disability also follows”); Charkowski v.
Berryhill, No. 15-13356-GAO, 2017 WL 1080910, at *7 (D. Mass.
Mar. 22, 2017) (“Under sections 404.1520(e) and 416.920(e) of
the regulations, a claimant will be found to be ‘not disabled’
when it is determined that he or she retains the RFC to perform
. . . [t]he functional demands and job duties of the occupation
as generally required by employers throughout the national
economy.”). In short, the VE’s testimony that Cohen could
perform his past relevant work as that work is generally
performed is substantial evidence in support of the ALJ’s Step 4
finding, and claimant’s argument to the contrary is incorrect.
IV. Conclusion
Because the ALJ committed neither a legal nor a factual
error in evaluating Cohen’s claim, see Manso-Pizarro, 76 F.3d at
16, his motion for an order reversing the Acting Commissioner’s
decision, document no. 9, should be denied, and the Acting
Commissioner’s motion for an order affirming her decision,
document no. 11, should be granted.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
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(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 12, 2017
cc: Christine Woodman Casa, Esq.
T. David Plourde, Esq.
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