United States District Court, D. New Hampshire
Dean A. Poirier
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2015 DNH 166
Bennett B. Mortell, Esq.
Robert J. Rabuck, Esq.
Landya McCafferty United States District Judge
Pursuant to 42 U.S.C. § 405(g), Dean Poirier moves to reverse the Acting Commissioner’s decision to deny his application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. 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”) is 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 supported by substantial evidence, shall be conclusive . . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court “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 HHS, 76 F.3d 15, 16 (1st Cir. 1996) (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, 955 F.2d 765, 769 (1st Cir. 1991) (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). Finally, when determining whether a decision of the Acting 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)).
The parties have submitted a Joint Statement of Material Facts, document no. 19. That statement is part of the court’s record and will be summarized here, rather than repeated in full.
Much of the medical record in this case pertains to treatment Poirier has received for an injury to his left knee. However, he also has a history of complaints concerning back pain. In November of 2010, an MRI showed a small disc bulge at L5-S1 with no nerve root impingement and no spinal stenosis. It would appear that treatment for Poirier’s back condition has been limited to non-narcotic medication and, perhaps, some physical therapy.
The record includes two Disability Determination Explanation (“DDE”) forms prepared by the Social Security Administration (“SSA”): one pertaining to Poirier’s claim for disability insurance benefits; and the other pertaining to his claim for supplemental security income. The SSA disability adjudicator who completed those forms indicated that no consultative examination was required, and none was ordered. See Administrative Transcript (hereinafter “Tr.”) 58, 67. The DDE forms also report the results of an assessment of Poirier’s physical residual functional capacity (“RFC”) completed by Dr. Burton Nault, a state-agency medical consultant. Among other things, Dr. Nault opined that Poirier could sit, with normal breaks, for a total of about six hours in an eight-hour workday. See Tr. 60, 69. Dr. Nault’s opinion is the only opinion on Poirier’s physical RFC in the record; Poirier did not submit a statement from a treating or examining source concerning his ability to perform work-related activities.
Poirier received a hearing before an ALJ. He represented himself. The transcript of Poirier’s hearing demonstrates that he neither called any witnesses nor asked the ALJ, on the record, whether he could do so. In an affidavit he submitted in support of his motion for a remand pursuant to sentence six of 42 U.S.C. § 405(g), Poirier described two brief conversations he had concerning potential witnesses, one with an SSA employee outside the hearing room, and one with the ALJ, inside the hearing room, but before the hearing went on the record. See Order (doc. no. 14) 2.
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 impairments: degenerative disc disease (lumbar spine); degenerative joint disease (left knee); depression; and anxiety (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). He is able to occasionally balance, stoop, kneel, crouch and crawl, and must avoid all ladders, ropes and scaffolds. He is able to perform simple unskilled work. He is able to maintain attention and concentration for two-hour increments throughout an eight-hour workday.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
Tr. 13, 14, 16, 20. Based upon his assessment of Poirier’s residual functional capacity, and a hypothetical question posed to a vocational expert (“VE”) that incorporated the RFC recited above, the ALJ determined that Poirier was able to perform the jobs of touch-up screener, surveillance system monitor, and escort vehicle driver.
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). To be eligible for supplemental security income, a person must be aged, blind, or disabled, and must meet certain requirements pertaining to income and assets. 42 U.S.C. § 1382(a). The question in this case is whether the ALJ correctly determined that Poirier was not under a disability from August 15, 2010, through May 24, 2013, which is the date of the ALJ’s decision.
For the purpose of determining eligibility for disability insurance benefits,
[t]he term “disability” means . . . inability 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 ...