Hill v. Astrue

Filing 19

Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER entered regarding 8 Plaintiff's Motion for Judgment on the Pleadings and 10 Defendant's Motion for Order Affirming Decision of Commissioner, cc:cl. "...For the reasons stated, Plaintiff's motion for judgment on the pleadings is DENIED and the Commissioner's motion to affirm is ALLOWED." (Healy, Bethaney)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MELANIE APRIL HILL,
Plaintiff

v.

MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant

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Civil Action No. 12-30018-KPN

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S
MOTION FOR JUDGMENT ON THE PLEADINGS and DEFENDANT’S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (Document Nos. 8 and 10)
November 15, 2012
NEIMAN, U.S.M.J.
This is an action for judicial review of a final decision by the Commissioner of the
Social Security Administration (“Commissioner”) regarding an individual’s entitlement to
Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1381(c)(3).
Melanie April Hill (“Plaintiff”) asserts that the Commissioner’s decision denying her
such benefits -- memorialized in a October 19, 2011 decision of an administrative law
judge -- is not supported by substantial evidence. She has filed a motion to reverse the
decision and the Commissioner, in turn, has moved to affirm.
The parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73. For the following reasons, the court will allow the Commissioner’s
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motion to affirm and deny Plaintiff’s motion to reverse.
I. STANDARD OF REVIEW
A court may not disturb the Commissioner’s decision if it is grounded in
substantial evidence. See 42 U.S.C. § 1383(c)(3). Substantial evidence is such
relevant evidence as a reasonable mind accepts as adequate to support a conclusion.
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The
Supreme Court has defined substantial evidence as “more than a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Thus, even if the administrative record could support
multiple conclusions, a court must uphold the Commissioner’s findings “if a reasonable
mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).
The resolution of conflicts in evidence and the determination of credibility are for
the Commissioner, not for doctors or the courts. Rodriguez, 647 F.2d at 222;
Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). A
denial of benefits, however, will not be upheld if there has been an error of law in the
evaluation of a particular claim. See Manso-Pizarro v. Sec’y of Health & Human Servs.,
76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate
circumstances, “to enter . . . a judgment affirming, modifying, or reversing the
[Commissioner’s] decision” or to “remand[ ] the cause for a rehearing.” 42 U.S.C. §
1383(c)(3).
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II. BACKGROUND
On March 16, 2010, Plaintiff filed for SSI benefits. (Administrative Record
(“A.R.”) at 53.) Plaintiff claimed that she was disabled due to back pain and certain
psychological disorders. (Id. at 55.) After her claim was denied both initially and upon
reconsideration, she requested a hearing in front of an administrative law judge (“ALJ”),
which occurred on September 22, 2011. (Id. at 53.)
Plaintiff, thirty-six years old at the time of the hearing, has a ninth grade
education and previously worked as an assembler, cashier, and cashier/ food server.
(A.R. at 14, 16, and 151-52.) At the hearing, Plaintiff testified that she suffers from
asthma, depression, anxiety, and back pain resulting from a spinal condition. (A.R. at
16-20.)
In a decision dated October 19, 2011, the ALJ denied Plaintiff’s claim. (A.R. at
53-70.) The ALJ found that Plaintiff had not been disabled within the meaning of the
Social Security Act (the “Act”) since March 16, 2010. (Id.) Although the ALJ
determined that Plaintiff suffered from several “severe” impairments, she ultimately
decided that Plaintiff has the residual functional capacity to perform light work as
defined in 20 C.F.R. § 416.967(b), with some limitations. (Id. at 57.) The ALJ also
found that Plaintiff could perform her past relevant work as a cashier and, in addition,
work as a ticket seller and ticket taker, all of which are jobs that exist in the national
economy. (Id.)
Plaintiff requested review of the ALJ’s decision by the Commissioner’s Appeals
Council on October 28, 2011. On November 30, 2011, the Appeals Council denied
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Plaintiff’s request. (Id. at. 1-3.) In due course, Plaintiff filed the instant action, the
Commissioner compiled the administrative record, and the parties submitted the crossmotions presently at issue.
III. DISCUSSION
An individual is entitled to SSI benefits if she is under a disability and is needy.
See 42 U.S.C. § 1381a. Plaintiff’s need is not challenged.
A. Disability Standard and the ALJ’s Decision
The Act defines disability, in part, as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which . . . can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 1382c(a)(3)(A). An individual is considered disabled under the Act:
only if [her] physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous work but cannot,
considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for work.
42 U.S.C. § 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49
(1987).
In determining disability, the Commissioner follows the five-step protocol
described by the First Circuit as follows:
First, is the claimant currently employed? If [she] is, the
claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A
“severe impairment” means an impairment “which
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significantly limits the claimant’s physical or mental capacity
to perform basic work-related functions.” If [she] does not
have an impairment of at least this degree of severity, [she]
is automatically not disabled.
Third, does the claimant have an impairment equivalent to a
specific list of impairments in the regulations’ Appendix 1? If
the claimant has an impairment of so serious a degree of
severity, the claimant is automatically found disabled.
....
Fourth . . . does the claimant’s impairment prevent [her] from
performing work of the sort [she] has done in the past? If
not, [she] is not disabled. If so, the agency asks the fifth
question.
Fifth, does the claimant’s impairment prevent [her] from
performing other work of the sort found in the economy? If
so [she] is disabled; if not [she] is not disabled.
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
In the instant case, the ALJ found as follows with respect to these questions:
Plaintiff has not engaged in substantial gainful activity since her application date
(question one); Plaintiff has impairments which are “severe,” specifically degenerative
disc disease to the lumbar spine, spondylolisthesis, L5-S1 foraminal stenosis, status
post-decompression and fusion surgery, lumbar radicular syndrome, asthma, obesity,
generalized anxiety disorder, and mood disorder, but those impairments do not meet or
medically equal one of the listed impairments in Appendix 1 (questions two and three);
and, Plaintiff has the residual functional capacity to perform past relevant work as a
cashier, as well as jobs that exist in significant numbers in the national economy
(questions four and five). Therefore, the ALJ determined, Plaintiff was not entitled to

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SSI benefits. (A.R. at 68-70.)
B. Plaintiff’s Challenge to the ALJ’s Decision
Plaintiff argues that the ALJ erred in failing to (1) give great weight to her
treating source’s opinion and (2) incorporate appropriate mental health limitations in
her residual functional capacity determination. The Commissioner responds that the
ALJ’s opinion is based on substantial evidence. For the reasons which follow, the court
finds the Commissioner’s argument more persuasive.
1. The Treating Physician’s Opinion
Plaintiff argues that the ALJ should have given controlling weight - - rather than
no weight - - to a note from her treating physician, Marc A. Linson, M.D. The
Commissioner disagrees, arguing that the ALJ properly gave the treating physician’s
opinion no weight because it was unsupported by objective medical evidence and
inconsistent with the doctor’s own medical notes.
The term "treating physician" is defined in the regulations as any physician who
"has provided [the claimant] with medical treatment or evaluation and who has or has
had an ongoing treatment relationship with [the claimant]." 20 C.F.R. § 416.902. While
the Social Security Administration’s Regulations instruct an administrative law judge to
give more weight to a treating source’s opinion when it is well-supported by medical
evidence, see 20 C.F.R. § 416.927(c)(2), such weight is not to be accorded to opinions
that are internally inconsistent or inconsistent with other evidence in the record. See
Arruda v. Barnhart, 314 F.Supp.2d 52, 72 (D. Mass. 2004). An administrative law
judge, moreover, need not adopt a treating physician’s opinion on the issue of
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disability, the ultimate determination of which is reserved to the administrative law
judge. 20 C.F.R. § 416.927(d)(1).
The ALJ declined to give Dr. Linson’s opinion any weight for a variety of
reasons. As an initial matter, the ALJ noted that the “opinion” was actually a note Dr.
Linson wrote in May of 2011 to excuse Plaintiff from jury duty. In its entirety, the note
reads: “Ms. Hill suffers from a spinal condition. She cannot sit for prolonged periods of
time. Due to this medical condition she is disabled and cannot perform jury duty for the
next year.” (A.R. 705.) As such, the ALJ read the note as an accommodation to
Plaintiff rather than a medical opinion for purposes of a disability determination. (A.R.
61.) The ALJ explained that the note was unaccompanied by any “evidence that Dr.
Linson conducted a physical examination to test the claimant’s ability to engage in
exertional activities or stooping, bending, lifting, sitting, and so forth prior to writing [the]
note.” (A.R. 61.) In addition, the ALJ explained that Dr. Linson’s determination that
Plaintiff was disabled was inconsistent with his opinion, shortly after Plaintiff’s surgery
in September of 2010, that Plaintiff could engage in “light to moderate activity.” (A.R.
61, 519.) Similarly, Dr. Linson’s own treatment notes consistently refuted his
determination that Plaintiff was disabled; as recently as April of 2011, Dr. Linson had
indicated that, although Plaintiff continued to have lower back pain, she was in much
less discomfort and was advised to cut down on her use of pain medication and engage
in light activity. (A.R. 63, 556.)
The ALJ also declined to give Dr. Linson’s note controlling weight because it
was inconsistent with other medical evidence on the record. For example, on April 29,
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2011, Plaintiff was evaluated by Poorna Manikantan, M.D., who noted that Plaintiff
reported that “pain used to be radiating down the lower extremities bilaterally, but this
has resolved primar[ily] with the surgery” and indicated that Plaintiff was able to
perform activities such as bathing, feeding, dressing, and toileting independently. Dr.
Manikantan also advised Plaintiff against bed rest for longer than four days and
recommended that she continue normal daily activities as tolerated. (A.R. 63, 564-65.)
Similarly, the ALJ’s decision was supported by the report of Scott Cowan, M.D., who
evaluated Plaintiff on August 23, 2011, and opined that Plaintiff
is a well-appearing female in no acute distress. She rises
from a seated position without difficulty. Range of motion of
the back is 60% of normal. Back is nontender to palpation
without step off or deformity. No overlying skin changes.
Hip and knee range of motion is full. Seated straight leg
raise is negative.
(A.R. 708.) Dr. Cowan also noted that an “EMG performed on Dec. 22, 2010 is notable
for unremarkable findings” and ultimately concluded that he “really [did] not see any
role for operative care.” (Id.)
The court notes that certain commentary by the ALJ - - speculating that health
care providers are sometimes inclined to assist patients in applications for disability
benefits out of sympathy - - was unnecessary and unhelpful to the determination of
disability in the present case. Such comments aside, however, it is clear that the ALJ’s
decision to give no weight to Dr. Linson’s note excusing Plaintiff from jury duty was
appropriate for the reasons explained above.
2. The ALJ’s Evaluation of Plaintiff’s Mental Limitations

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Plaintiff next claims that the ALJ’s residual functional capacity determination
failed to take into account certain mental limitations. Plaintiff argues, generally, that
her medical records indicate that she has mental health impairments that would
significantly reduce her residual functional capacity, although she does not articulate
which mental limitations were ignored or how, specifically, they could alter the ALJ’s
determination. The Commissioner, in turn, argues that the ALJ’s residual functional
capacity determination is based on substantial evidence. Again, the court finds the
Commissioner has the stronger argument.
With respect to Plaintiff’s mental limitations, the ALJ determined that she had the
residual functional capacity to perform unskilled work and could “maintain
concentration, persistence, or pace for two-hour blocks of time.” (A.R. 57.) In reaching
this conclusion, the ALJ considered treatment notes from River Valley Counseling
Center, where Plaintiff underwent a Psychopharm Diagnostic Assessment with Sharon
Hinton, APRN, on May 5, 2010. (A.R. 287-88.) Nurse Hinton reported that Plaintiff had
normal speech and appearance, good eye contact, and was oriented and attentive.
(Id.) While Plaintiff had moderate depressive symptoms and reported difficulty falling
asleep, her thought content and process were both normal and she was assigned a
Global Assessment of Functioning (GAF) score of 55. (Id.)1 The ALJ assigned some
weight to Nurse Hinton’s opinion and observations, noting that they were not
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A GAF score in the 51-60 range indicates moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., no friends, unable to keep a job). American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. 2000).
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inconsistent with Plaintiff’s residual functional capacity.
The ALJ also considered treatment notes from Sharlene Hernandez, APRN, who
treated Plaintiff from June of 2010 until July of 2011. During that time, Nurse
Hernandez repeatedly assessed Plaintiff as having mild to moderate symptoms of
depression and anxiety and consistently noted that Plaintiff was oriented, attentive, and
had full range affect. (A.R. 440-441, 436-37, 468-492.) While, in February of 2011,
Plaintiff was reported to have severe depressive and moderate anxiety symptoms, she
was still oriented and attentive with fair judgment and insight and good concentration.
(A.R. 579.) By March of 2011, Plaintiff reportedly had moderate symptoms of
depression and only mild to moderate symptoms of anxiety, although she continued to
have difficulty falling asleep. (A.R. 574.) The ALJ also explained that treatment notes
through July of 2011 depicted a similar situation, with Plaintiff demonstrating good eye
contact, orientation, attentiveness, insight, and judgment and reporting only mild to
moderate symptoms of depression and anxiety. (A.R. 691-95.)
In addition, the ALJ considered the opinion of Robert Sampson M.D., who
completed a consultative examination of Plaintiff and reported that her thought was
logical and goal directed without evidence of hallucinations or delusions. (A.R. 40208.) While Plaintiff indicated symptoms of anxiety, she scored 28 out of 30 on the Mini
Mental Status Examination and was able to understand, remember, and follow simple
instructions. (Id.) The ALJ also took note of Dr. Sampson’s opinion that Plaintiff’s
psychiatric conditions were fair with treatment and likely predicated on her back
condition. (Id.)
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In sum, the ALJ’s residual functional capacity determination considered all
available medical evidence relating to Plaintiff’s mental conditions and incorporated
appropriate limitations based on those conditions. While Plaintiff argues that the ALJ
should have assessed Plaintiff with more severe limitations based on the medical
record, it is left to an administrative law judge to resolve conflicts in evidence and,
where such determinations are supported by the record, they are to be affirmed. See
Irlanda Ortiz, 955 F.2d at 769 (even if the administrative record could support multiple
conclusions, a court must uphold the Commissioner’s findings “if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it as adequate to support
his conclusion.).
IV. CONCLUSION
For the reasons stated, Plaintiff’s motion for judgment on the pleadings is
DENIED and the Commissioner’s motion to affirm is ALLOWED.
DATED: November 15, 2012
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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