United States District Court, D. New Hampshire
Lance Tillinghast, Esq. Terry L. Ollila, Esq.
J. MCAULIFFE UNITED STATES DISTRICT JUDGE.
to 42 U.S.C. § 405(g) and 1383(c)(3), claimant, Brian
Zackowski, moves to reverse or vacate the Acting
Commissioner's decision denying his application for
Disability Insurance Benefits under Title II of the Social
Security Act (the “Act”), 42 U.S.C. § 423,
and Supplemental Security Income Benefits under Title XVI of
the Act, 42 U.S.C. §§ 1381-1383(c). The Acting
Commissioner objects and moves for an order affirming her
reasons discussed below, claimant's motion is denied, and
the Acting Commissioner's motion is granted.
2012, Zackowski filed an application for Disability Insurance
Benefits, alleging that he had been unable to work since
December 28, 2010, due to a spine injury and depression.
Administrative Record (“Admin. Rec.”) at 155,
159. That application was denied (Admin. Rec. at 74), and
claimant requested a hearing before an Administrative Law
Judge (“ALJ”) (Admin. Rec. at 87). On October 31,
2013, Zackowski appeared without counsel before an ALJ, along
with a vocational expert, who considered claimant's
application de novo. Admin. Rec. at 23-71. Two weeks later,
the ALJ issued his written decision, concluding that
Zackowski was not disabled, as that term is defined in the
Act, at any time prior to the date of his decision.
Id. at 10-22.
sought review of the ALJ's decision by the Appeals
Council. Admin. Rec. at 9. By notice dated June 24, 2015, the
Appeals Council denied Zackowski's request for review.
Admin. Rec. at 1-4. Accordingly, the ALJ's denial of
Zackowski's application for benefits became the final
decision of the Acting Commissioner, subject to judicial
review. Id. at 1.
then filed for federal district court review of the
Commissioner's decision. See Admin. Rec. at 393-394.
Prior to the court's review, however, the Commissioner,
through her attorney, assented to Zackowski's motion to
remand the decision for further proceedings, under 42 U.S.C.
§ 405(g). On June 2, 2016, the Appeals Council vacated
the ALJ's earlier decision, and remanded the case to the
ALJ for further consideration and evaluation of the treating
source opinions in the record.
11, 2017, the ALJ held a second hearing at which Zackowski,
his attorney, and a vocational expert appeared. Admin. Rec.
at 344-384. At the hearing, plaintiff amended his alleged
onset date of disability to February 6, 2012. Admin. Rec. at
352. On September 15, 2017, the ALJ issued his written
decision, concluding that Zackowski was not disabled, as that
term is defined in the Act, at any time prior to the date of
the decision. Id. at 326-337. Zackowski did not file
any written exceptions to the ALJ's decision with the
Appeals Council, and, the ALJ's decision thus became the
final decision of the Commissioner.
subsequently filed a timely action in this court, asserting
that the ALJ's decision is not supported by substantial
evidence. Zackowski then filed a “Motion for Order
Reversing Decision of the Commissioner” (document no.
7). In response, the Acting Commissioner filed a
“Motion for Order Affirming the Decision of the
Commissioner” (document no. 9). Those motions are
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. 10), need not
be recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
“Substantial Evidence” and Deferential Review.
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).
Parties' Respective Burdens.
individual seeking SSI and 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). 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).
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. §
those principles in mind, the court reviews claimant's
motion to reverse and the Acting ...