United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable
of performing work existing in significant numbers in the
national economy. The plaintiff seeks remand on the bases
that the ALJ erred in evaluating her testimony and relied on
a vocational expert's response to a hypothetical question
positing a residual functional capacity (“RFC”)
different from that which the ALJ ultimately assessed.
See Itemized Statement of Specific Errors
(“Statement of Errors”) (ECF No. 17) at
7-12. I find no reversible error and,
accordingly, recommend that the court affirm the
to the commissioner's sequential evaluation process, 20
C.F.R. §§ 404.1520, 416.920; Goodermote v.
Sec'y of Health & Human Servs., 690 F.2d 5, 6
(1st Cir. 1982), the ALJ found, in relevant part, that the
plaintiff met the insured status requirements of the Social
Security Act through December 31, 2013, Finding 1, Record at
11; that she had the severe impairments of peripheral
arterial disease, emphysema, bipolar disorder, and a
personality disorder with cluster B traits, Finding 3,
id. at 12; that she had the RFC to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except that, inter alia, she could lift
and carry 20 pounds occasionally and 10 pounds frequently,
sit and stand for a maximum of six hours in an eight-hour
workday, was limited to frequent climbing of ramps or stairs,
could have no exposure to respiratory irritants, and could
respond appropriately to coworkers, supervisors, and usual
work situations not involving the public, Finding 5,
id. at 15; that, considering her age (37 years old,
defined as a younger individual on her alleged disability
onset date, April 13, 2013), education (at least high
school), work experience (transferability of skills
immaterial), and RFC, there were jobs existing in significant
numbers in the national economy that she could perform,
Findings 7-10, id. at 21; and that she, therefore,
had not been disabled from April 13, 2013, through the date
of the decision, February 3, 2016, Finding 11, id.
at 22. The Appeals Council declined to review the decision,
id. at 1-3, making the decision the final
determination of the commissioner, 20 C.F.R. §§
404.981, 416.1481; Dupuis v. Sec'y of Health &
Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. §§ 405(g), 1383(c)(3);
Manso-Pizarro v. Sec'y of Health & Human
Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words,
the determination must be supported by such relevant evidence
as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S.
389, 401 (1971); Rodriguez v. Sec'y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
reached Step 5 of the sequential evaluation process, at which
stage the burden of proof shifts to the commissioner to show
that a claimant can perform work other than her past relevant
work. 20 C.F.R. §§ 404.1520(g), 416.920(g);
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
Goodermote, 690 F.2d at 7. The record must contain
substantial evidence in support of the commissioner's
findings regarding the plaintiff's RFC to perform such
other work. Rosado v. Sec'y of Health & Human
Servs., 807 F.2d 292, 294 (1st Cir. 1986).
statement of errors also implicates Step 4 of the sequential
evaluation process, at which stage the claimant bears the
burden of proving inability to return to past relevant work.
20 C.F.R. §§ 404.1520(f), 416.920(f);
Bowen, 482 U.S. at 146 n.5 (1987). At this step, the
commissioner must make findings of the plaintiff's RFC
and the physical and mental demands of past work and
determine whether the plaintiff's RFC would permit
performance of that work. 20 C.F.R. §§ 404.1520(f),
416.920(f); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
The ALJ's Assessment of the Plaintiff's
provided several reasons for deeming the plaintiff's
“statements concerning the intensity, persistence and
limiting effects” of her symptoms “not entirely
credible[.]” Record at 17. The plaintiff challenges
those pertaining to her alleged walking, breathing, and
social difficulties. See Statement of Errors at
8-10. For the reasons that follow, I find no reversible error
in the ALJ's assessment of those allegations.
Security Ruling 96-7p (“96-7p”), which was in
effect at the time of the ALJ's decision, provides that a
“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, reprinted in West's Social
Security Reporting Service Rulings 1983-1991 (Supp.
2017), at 133.
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. Sec'y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).
no basis on which to disturb the credibility determination
made in this case.
acknowledged that the plaintiff alleged that, as a result of
her peripheral arterial disease, (i) she could not
“stand for a long time” and her pain was
“constant[, ]” (ii) she had “painful and
weak legs[, ]” (iii) “her hips lock[ed] up to 20
times each day[, ]” and (iv) this was “triggered
by any pressure on her legs, and in order to treat it she
need[ed] to lay down and rest for between 30 and 45
minutes.” Record at 16. He further noted that she had
alleged difficulty walking up stairs. See id. at 17.
the ALJ observed that Mark E. Bolduc, M.D., had performed
exercise testing on March 25, 2013, for a bilateral lower
extremity arterial evaluation and “found ‘no
significant arterial insufficiency at rest[, and] [m]oderate
arterial insufficiency in the right lower extremity with
exercise[, with] [n]o significant arterial insufficiency
noted on the left.'” Id. (quoting
id. at 293). He added that, although the plaintiff
had reported pain and weakness in the right leg and
difficulty walking up stairs, she “ambulate[d] without
assistance[, ] and her record does not contain instances of
falls or an antalgic gait.” Id. “In
fact, ” he noted, “she has been recorded as
having ‘no difficulty walking.'” Id.
(quoting id. at 699).
recounted that the plaintiff again underwent an arterial
study with exercise on May 6, 2014, following which J.
Hendrik Jordaan, M.D., “opined that there was no
significant arterial insufficiency in either extremity at
rest or with exercise.” Id. He added:
These test results were consistent with the ones that Dr.
Bolduc had performed a year prior, and in May of 2014 Dr. . .
. Bolduc described the [plaintiff] as a “stable
peripheral vascular disease patient.” He noted that she
was “actually doing quite well” and she had
“no symptoms whatsoever.”
Id. (quoting id. at 614-15).
plaintiff argues that, in assessing her allegations of
walking difficulties, the ALJ erred in citing evidence that
she had no significant arterial insufficiency at rest
“while ignoring evidence from the same cited testing
and examination reports indicating that [she] was able to
perform walking exercise testing for less than two minutes
before having to stop due to pain on both occasions of
testing in 2013 and 2014.” Statement of Errors at 9.
She adds that the ALJ ...