United States District Court, D. New Hampshire
McCafferty United States District Judge
Mark Sunshine seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying, in part, his
application for social security disability benefits. Sunshine
moves to reverse the Acting Commissioner's decision that
he was no longer disabled as of October 4, 2013, contending
that the Administrative Law Judge (“ALJ”) erred
in his assessment of Sunshine's residual functional
capacity by improperly evaluating and weighing the medical
evidence and not crediting Sunshine's subjective
complaints. He also argues that the ALJ erred by relying on
the vocational expert's response to hypotheticals that
did not match his residual functional capacity assessment.
For the reasons that follow, the decision of the Acting
Commissioner is affirmed.
reviewing the final decision of the Acting Commissioner in a
social security case, the court “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); accord Seavey v. Barnhart, 276 F.3d
1, 9 (1st Cir. 2001). The court defers to the ALJ's
factual findings as long as they are supported by substantial
evidence. § 405(g); see also Fischer v. Colvin,
831 F.3d 31, 34 (1st Cir. 2016).
determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis. 20 C.F.R. § 404.1520. The
claimant bears the burden through the first four steps of
proving that his impairments preclude his from
working. Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001). At the fifth step, the Acting
Commissioner has the burden of showing that jobs exist which
the claimant can do. Id.
the claimant is found disabled at any point in the process,
the ALJ must also determine if his disability continues
through the date of the decision.” Nardolillo v.
Astrue, No. CA 09-603 S, 2011 WL 1532147, at *3 (D.R.I.
Mar. 29, 2011), report and recommendation adopted sub nom.
Nardilillo v. Astrue, No. CA 09-603 S, 2011 WL
1692162 (D.R.I. Apr. 21, 2011) (internal quotation marks,
citation, and alterations omitted). Relevant to this case, to
terminate benefits after a disability has been found,
substantial evidence must demonstrate that there has been
medical improvement to the point that the claimant is able to
engage in substantial activity. See, e.g., Shirzay v.
Astrue, No. CIV.A. 10-11661-JLT, 2012 WL 397897, at *5
(D. Mass. Jan. 19, 2012), report and recommendation
adopted, No. CIV.A. 10-11661-JLT, 2012 WL 397970 (D. Mass.
Feb. 6, 2012). Medical improvement is defined as “any
decrease in the medical severity of [an] impairment”
determined by “changes (improvement) in the symptoms,
signs and/or laboratory findings associated with [the]
impairment.” 20 C.F.R. § 404.1594(b)(1).
August 26, 2013, Edward Sunshine applied for social security
disability benefits, claiming a disability that began on July
25, 2012, when he was in a motorcycle accident. Sunshine
alleged that he was disabled because of a concussion,
vertigo, left arm fractures, right leg fracture, blurred
vision, loss of memory, confusion, migraine headaches, loss
of feeling and coordination in his left hand and a limp.
Sunshine was 49 years old at the time of his application. He
had previously worked as a scientist, carpenter, roofer,
small business owner, hot dog vendor, and “house
his accident, Sunshine spent three days in the hospital
recovering from his injuries. He fractured several bones and
underwent surgery. In the months following the accident,
Sunshine sought treatment for vertigo and headaches, as well
as for the various physical injuries he sustained during the
accident. Sunshine continued to seek treatment for his
ailments at least through March 2015.
14, 2015, a hearing before an ALJ was held on Sunshine's
application for benefits. Sunshine was represented by an
attorney and testified at the hearing.
19, 2015, the ALJ issued a partially favorable decision. The
ALJ found Sunshine had not engaged in substantial gainful
activity from his July 25, 2012 alleged onset date through
the decision date. At Step Two, the ALJ found Sunshine had
the following “severe” impairments after the
alleged onset date, significantly limiting his ability to do
basic work-related activities: “status-post surgical
repair of left olecranon, radial, and 5th metacarpal
fractures; status-post right patellar fracture and surgical
repair of right thigh laceration; post-concussion syndrome
with vestibulopathy; and obesity.” At Step Three, the
ALJ found Sunshine had no impairments that met or equaled any
of the listed impairments at 20 C.F.R. Part 404, Subpart P,
Appendix 1 at any time from the alleged onset date through
the decision date. The ALJ then found that Sunshine had the
following residual functional capacity (“RFC”)
from the July 25, 2012 alleged onset date through October 3,
[T]he claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except that he could never crawl or climb ladders, ropes or
scaffolds; could only occasionally climb ramps and stairs,
balance, stoop, kneel, and crouch; could only occasionally
perform foot control operations; could only occasionally
reach and never overhead reach with the non-dominant left
upper extremity; could only occasionally engage in handling
and fingering with the non-dominant left upper extremity;
needed to avoid exposure to extreme cold, moving machinery,
and unprotected heights; would have missed more than 3 days
of work a month; and would have been off-task up to 20% of
found that, for the period from July 25, 2012 through October
3, 2013, Sunshine could not do any past relevant work and
that no jobs existed in significant numbers that he could do
with the assessed RFC. The ALJ thus concluded Sunshine was
disabled from July 25, 2012, through October 3, 2013.
determined that as of October 4, 2013, medical improvement
related to Sunshine's ability to work occurred. For the
period from October 4, 2013, through the June 19, 2015
decision date, the ALJ assessed the following RFC:
[T]he claimant has had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except that he can never crawl or climb ladders, ropes, or
scaffolds; can only occasionally climb ramps and stairs,
balance, stoop, kneel, and crouch; can only occasionally
perform foot control operations with the right lower
extremity; can frequently reach and occasionally overhead
reach with the non-dominant left upper extremity; can
frequently engage in handling and fingering with the
non-dominant left upper extremity; must avoid exposure to
extreme cold, moving machinery on the work floor, unprotected
heights, and very loud noises; and must avoid exposure to
fluorescent lights or be permitted to wear sunglasses in the
then found that Sunshine could do past relevant work as a
small business owner and mail order clerk. The ALJ also
found in the alternative that Sunshine could do other jobs
existing in significant numbers in the economy.
the ALJ found Sunshine was not disabled starting October 4,
2013, through the June 19, 2015 decision date. The Appeals
Council denied Sunshine's request for review, making the
ALJ's decision the Acting Commissioner's final
contends that the ALJ erred in his assessment of
Sunshine's residual functional capacity as of October 4,
2013, by ignoring and/or improperly discounting his treating
physician's opinion and by disregarding Sunshine's
own testimony as to his symptoms. He also argues that the ALJ
erred at Step ...