Guay v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Guay
v. Civil No. 19-cv-08-JD
Opinion No. 2019 DNH 166
Andrew M. Saul, Commissioner,
Social Security Administration1
O R D E R
Catherine Guay seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the Commissioner’s decision denying her
applications for disability insurance benefits under Title II
and supplemental security income under Title XVI. In support,
she contends that the Administrative Law Judge (“ALJ”)
improperly assessed her residual functional capacity and failed
to meet the Commissioner’s burden at Step Five of the sequential
analysis used in social security decisions. The Commissioner
moves to affirm.
Standard of Review
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
1 This action was originally brought against Nancy A.
Berryhill in her capacity as the Acting Commissioner of the
Social Security Administration. Andrew M. Saul has since been
appointed Commissioner and has been automatically substituted.
See Fed. R. Civ. P. 25(d).
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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 if they are supported by substantial evidence.
§ 405(g); Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016)..
Substantial evidence is “more than a scintilla of evidence” but
less than a preponderance. Purdy v. Berryhill, 887 F.3d 7, 13
(1st Cir. 2018). The court must affirm the ALJ’s findings, even
if the record could support a different conclusion, when “a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support [the ALJ’s]
conclusion.” Irlanda Ortiz v. Sec’y of Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991) (internal quotation marks
omitted); accord Purdy, 887 F.3d at 13.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. §§ 404.1520 & 416.920.2 The
claimant bears the burden through the first four steps of
proving that his impairments preclude him from working. Purdy,
2 Because the regulations implementing the applicable
standards for disability under Title II and Title XVI are the
same for purposes of this case, the court will cite the Title II
regulations in Part 404. See Sullivan v. Zebley, 493 U.S. 521,
525, n.3 (1990).
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887 F.3d at 9. At the fifth step of the sequential analysis,
the Commissioner bears the burden to show that a claimant can do
work other than her past work. § 404,1520(a)(4); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
Background
In February of 2015, Catherine Guay injured her index and
“long” fingers on her left hand, her dominant hand, when she
tried to unblock a snowblower. Although the wounds healed, her
fingers remained stiff and painful with limited range of motion.
She also had previously experienced anxiety and depression,
related to aortic bypass surgery, which increased after the
injury to her fingers.
Guay returned to her job at a taxicab company after she
injured her fingers. In September of 2015, she left the cab
company and worked as an assembler for a medical device company.
She left that job a year later because of pain in her left
(injured) hand. During that time, she was treated by Dr. Heaps
at the New Hampshire Orthopaedic Center and PCP APRN Odonell at
St. Joseph’s Hospital.
On September 30, 2016, Guay filed applications for
disability insurance benefits and supplemental security income.
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Guay had examinations by consultative medical examiners, as
requested by the Social Security Administration.
A hearing before an ALJ was held on October 26, 2017. Guay
and a vocational expert testified at the hearing. The ALJ posed
a hypothetical question of a person limited to light work, with
the top weight being twenty-five pounds lifted with the right
nondominant arm. The hypothetical excluded use of ladders,
ropes, and scaffolds; allowed occasional use of stairs; and
excluded fine motor use of the left dominant hand for punching
and gripping. In response, the vocational expert said that
person could not do any of Guay’s past work. The vocational
expert also testified that a person who could not handle with
her dominant hand would be precluded from all work at the light
and sedentary exertional levels.
The ALJ continued the hearing in order to have a medical
expert testify. The hearing resumed on February 1, 2018. Guay
testified at the hearing, along with an orthopedic surgeon, Dr.
Darius Ghazi, M.D., and a different vocational expert. Dr.
Ghazi testified that the injury to Guay’s fingers caused them
not to function which interfered with the function of her left
hand. Because of that condition, Dr. Ghazi said that Guay could
not do anything bi-manually. Otherwise, her functional capacity
depended on how well she could use her left hand. The ALJ did
not let Dr. Ghazi testify about mental issues that would affect
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Guay’s motivation for rehabilitation. He said that Guay could
climb stairs, but not a ladder, and should avoid hazards.
The ALJ described a hypothetical person to the vocational
expert as one who could do light work but had to avoid hazards,
ladders, ropes, and scaffolds, and crawling and was limited to
rare use of her left, dominant, hand for fingering or handling.
The vocational expert said the person could not do Guay’s past
work. She identified jobs that the person could do, which were
furniture rental clerk, usher, and school bus monitor.
With respect to the furniture rental clerk and usher, the
vocational expert clarified that the Dictionary of Occupational
Titles (“DOT”) described them as requiring occasional rather
than only rare use of the hands but did not specify which hand
would be used or whether both hands were necessary. Based on
that lack of specificity, the vocational expert thought the
furniture rental clerk and usher jobs could be performed with
the nondominant hand. She qualified her response further by
saying that there was a very limited base of those jobs.
Guay’s attorney represented to the vocational expert that
Guay had testified during the previous part of the hearing,
where a different vocational expert appeared, that she could not
write with her right hand or use a keyboard mouse with her right
hand. In response, the vocational expert said that those
limitations would eliminate the furniture rental clerk job. She
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also said, however, that the usher job “could perhaps still be
performed” depending on her ability to accommodate the lack of
use of her left hand with her nondominant right hand. Doc. 8-2
at 54. The vocational expert acknowledged that the school bus
monitor job could require use of both hands and that only a
small number of jobs were available.
The ALJ issued a decision on February 14, 2018. The ALJ
found that Guay had a severe impairment because of a swan neck
deformity of her index finger and a malunion of her long finger
on her left dominant hand. Despite that severe impairment, the
ALJ found that Guay retained the functional capacity to perform
light work except that she could use her left hand only rarely
for fingering or handling, less than 5% of the work day; could
not climb ladders, ropes, or scaffolds; and needed to avoid all
hazards. Based on the second vocational expert’s testimony, the
ALJ found that Guay could work, doing jobs such as furniture
rental clerk, usher, and school bus monitor. For that reason,
the ALJ found that Guay was not disabled.
Discussion
In support of her motion to reverse the Commissioner’s
decision, Guay challenges the residual functional capacity
assessment, including his evaluation of the medical evidence,
and his finding at Step Five. The Commissioner moves to affirm,
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and in support, disputes Guay’s analysis of the evidence and
argues that the vocational expert sufficiently explained the
difference between her opinion and the DOT descriptions of the
cited jobs.
A. Residual Functional Capacity
The residual functional capacity assessment is a finding of
the most a claimant can do in a work setting despite her
limitations caused by impairments. 20 C.F.R. § 404.1545(a)(1).
In making that assessment, an ALJ considers the combined effect
of all impairments, including any impairments that were not
found to be severe. § 404.1523(c). An ALJ’s assessment is
reviewed to determine whether it is based on proper legal
standards and is supported by substantial evidence. Nguyen, 172
F.3d at 35-36.
1. Combined Effect
Guay contends that although her injured left hand was her
primary impairment, the combined effect of that impairment with
her depression, anxiety, and peripheral vascular disease
decreased her ability to function.3 She argues that the ALJ
3 Although Guay mentions peripheral vascular disease, she
provides no developed argument to show the disease caused any
impairment in her ability to function.
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erred in failing to discuss the limiting effects of her
depression and anxiety. She also faults the ALJ for failing to
allow Dr. Ghazi, the orthopedic medical expert, to testify at
the hearing about the effects of her depression and anxiety.
She contends that the ALJ should have included a mental
limitation for simple decisions in the residual functional
capacity assessment based on Dr. Gustavson’s evaluation.
a. Dr. Ghazi
During his testimony about the injury to and function of
Guay’s left hand, Dr. Ghazi mentioned the effects of depression
and anxiety on a patient’s motivation for rehabilitation. The
ALJ instructed Dr. Ghazi not to testify about mental health
matters. Guay asserts that the ALJ’s restriction on Dr. Ghazi’s
testimony was error.
Dr. Ghazi is a medical expert in the field of orthopedic
surgery. He is not a psychiatrist or a psychologist and did not
claim to have expertise in mental health. Dr. Ghazi stated that
mental issues were beyond his field of expertise.
During questioning by Guay’s attorney, however, Dr. Ghazi
agreed with the attorney that his studies and rotations during
medical school gave him “psychological expertise in a way.”
Doc. 8-2, at *46. The Commissioner points out, based on Dr.
Ghazi’s statement of professional qualifications in the record,
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that he completed his medical training in the 1960s and worked
exclusively in orthopedics after that time. Given Dr. Ghazi’s
experience and his stated expertise in orthopedics rather than
psychology, the record does not support Guay’s argument that Dr.
Ghazi was also qualified to give opinions about her mental
health issues. Guay has not shown that the ALJ erred in
focusing Dr. Ghazi’s testimony in the area of his expertise,
orthopedics. See § 404.1527(c).
b. Dr. Gustavson
The ALJ gave great weight to the opinion of examining
consultant, Dr. Gustavson. Guay contends that the ALJ erred in
failing to include a limitation in the residual functional
capacity to making simple decisions, as found by Dr. Gustavson.
In response, the Commissioner argues, among other things, that
the lack of that limitation is harmless because the jobs
identified by the vocational expert, which support the ALJ’s
finding at Step Five, only require simple decisions.
The three jobs identified by the vocational expert,
furniture rental clerk, usher, and school bus monitor, are all
unskilled jobs (SVP 2). Use of Vocational Expert and Vocational
Specialist Evidence, and Other Reliable Occupational Information
in Disability Decisions, SSR 00-4p, 2000 WL 1898704, at *3 (Dec.
4, 2000). “Unskilled work is work which needs little or no
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judgment to do simple duties that can be learned on the job in a
short period of time.” § 404.1568(a). Guay has not shown that
a limitation for simple decisions would have eliminated the jobs
identified by the vocational expert and relied on by the ALJ.
c. APRN Odonnell
Guay also faults the ALJ for giving little weight to the
opinion of APRN Odonnell about her impairment in completing a
work week and in maintaining a consistent pace because of
psychological symptoms. An ALJ is required to consider medical
opinions along with all other relevant evidence in a claimant’s
record. 20 C.F.R. § 404.1527(b). “Medical opinions are
statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis
and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental
restrictions.” § 404.1527(a)(1). Medical opinions are
evaluated based upon the nature of the medical source’s
relationship with the claimant, the extent to which the source
provides evidence to support the opinion, the extent the opinion
is consistent with other evidence in the record, the
specialization of the medical source, and other factors
including the understanding the source has of the social
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security system. § 404.1527(c); see also Bunnell v.
Commissioner of Social Security, 18-cv-569-LM, 2019 WL 4201068,
at *4 (D.N.H. Sept. 5, 2019).
The ALJ explained that he considered APRN Odonnell’s
opinion about Guay’s limitations in completing a work week,
maintaining pace, and maintaining concentration. He noted that
Guay stated in her function report, contrary to APRN Odonnell’s
evaluation, that she had the ability to pay attention “forever”.
The ALJ also noted that Odonnell was not a specialist in mental
health and is not an acceptable medical source. Therefore, the
ALJ adequately explained the weight given to APRN Odonnell’s
opinion.
2. Left Hand Pain
Guay challenges the ALJ’s finding that her statements about
the intensity, persistence, and limiting effects of her hand
injury were not entirely consistent with the medical evidence.
Guay contends that the ALJ did not adequately address the pain
she experienced in her hand or discuss Dr. Ghazi’s testimony
that the hand is a “very sensitive organ.” The ALJ did limit
Guay’s use of her hand to less than 5% of the time. She does
not explain why that limitation does not adequately address her
hand pain.
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3. Use of Left Hand
Guay contends that the ALJ improperly rejected the opinions
of Dr. Wolf and Dr. Ghazi that she could not use her left hand
and instead found that she could rarely use her left hand with
no supporting medical opinion. The Commissioner acknowledges
the differences between the ALJ’s assessment and Dr. Wolf’s
opinion, which Dr. Ghazi accepted, but argues that the ALJ
properly explained the basis for his finding. The Commissioner
further argues that substantial evidence supports that finding.
The ALJ pointed out that, contrary to Dr. Wolf’s view of
Guay’s limitation, Dr. Ghazi found that Guay could still use her
thumb and the uninjured fingers on her left hand to grasp and
squeeze. Guay also testified that she could write using her
thumb and the uninjured fingers, and the record shows that she
completed her function report and other administrative forms by
writing her answers herself with clear and legible results. The
ALJ also noted that Guay testified that she could do other
activities using her left hand and that she had worked for more
than a year in an assembly job that required use of both hands.
4. Result
Guay has not shown that the ALJ erred in the residual
functional capacity assessment. Substantial evidence in the
record supports the ALJ’s finding.
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B. Step Five Finding
As it stated above, the Commissioner bears the burden at
the fifth step of the sequential analysis to show, based on the
claimant’s residual functional capacity, that she can do work
other than her past work. Yuckert, 482 U.S. at 146 n.5; Seavey
v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). In cases where the
Medical-Vocational Guidelines are not applicable, an ALJ may
rely on information from the DOT and the testimony of a
vocational expert as evidence to satisfy the Commissioner’s Step
Five burden. §§ 404.1566(d) & (e); SSR 00-4p, 2000 WL 1898704.
A vocational expert’s opinion, however, generally must be
consistent with occupational information in the DOT. Id. at *2.
If the vocational expert’s testimony conflicts with the DOT, the
ALJ must resolve this conflict by getting a reasonable
explanation from the vocational expert. Id.
The ALJ found, based on the vocational expert’s testimony,
that Guay could do the jobs of furniture rental clerk, usher,
and school bus monitor. Guay contends that ALJ could not rely
on that testimony because it conflicted with the DOT and was not
reliable. The ALJ noted the conflict, that those jobs required
occasional handling and fingering and he had limited Guay to
rare use of the left hand for those activities. The ALJ found,
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however, that the vocational expert gave a reasonable
explanation for her opinions.
Specifically, the ALJ stated that based on the vocational
expert’s testimony the furniture rental clerk job required
occasional handling and fingering but did not require that
activity with both hands and that the vocational expert
testified that it required only minimal data entry. The ALJ
found that was consistent with the record which showed Guay
could do some limited writing. The vocational expert testified
that the usher job could be done using the right hand.
Guay contends that the explanation was not reasonable. In
support, Guay cites her attorney’s hypothetical posed to the
vocational expert that described her as being unable to use her
right hand to take notes or use a mouse or keyboard. She argues
that because the vocational expert eliminated rental furniture
clerk job based on those criteria and because the requirements
of the usher job could not be met with those limitations, the
ALJ could not rely on the vocational expert’s opinion.
Contrary to Guay’s attorney’s representation to the
vocational expert, the record shows that Guay testified she
could not use her injured left hand for those activities. She
also did not testify that she was unable to do those activities
with her right hand. Guay testified that she depended a lot on
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her right hand to do things.4 Although Guay also challenges the
vocational expert’s explanation based on the O*NET description
of the job and common sense, the vocational expert’s opinion
must be consistent with the DOT, not other sources. Strong v.
Berryhill, 2019 WL 2442147, at *6 (W.D.N.Y June 12, 2019);
Poissant v. Colvin, 2014 WL 1686816, at *7 (D. Me. Apr. 29,
2014).
The ALJ found that the vocational expert provided a
reasonable explanation for the inconsistency between her
opinions and the DOT descriptions of the furniture rental clerk
and usher jobs. Guay has not shown that the ALJ erred in that
finding. Therefore, the vocational expert’s opinions that Guay
could do the jobs of rental furniture clerk and usher provide
substantial evidence to sustain the Commissioner’s burden at
Step Five.5
4 The record shows that Guay was able to do laundry, make
coffee, do dishes, make breakfast, and help her grandson take a
bath. She worked for a year after the injury to her left hand
in an assembly job, which required her to use both hands.
5 It is therefore unnecessary to consider the third job
identified, school bus monitor.
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Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 11) is denied. The Commissioner’s motion to
affirm (document no. 13) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 25, 2019
cc: Counsel of record.
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