Vargas Mendoza v. US Social Security Administration
Filing
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///ORDER granting 11 motion to reverse decision of commissioner; denying 12 motion to affirm decision of commissioner. So Ordered by Chief Judge Steven J. McAuliffe. (lag)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jose Vargas Mendoza,
Claimant
v.
Civil No. 10-cv-357-SM
Opinion No. 2011 DNH 073
Michael J. Astrue, Commissioner,
Social Security Administration
Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Jose Vargas Mendoza, moves to reverse the Commissioner’s decision
denying his application for Social Security Disability Insurance
Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI of the Act.
See 42 U.S.C. §§ 423, 1381-1383c.
The Commissioner objects and
moves for an order affirming his decision.
For the reasons
discussed below, claimant’s motion is granted (in part), and the
Commissioner’s motion is denied.
Factual Background
I.
Procedural History.
On May 21, 2007, claimant filed an application for
Disability Insurance Benefits and Supplemental Security Income
Benefits, alleging that he had been unable to work since January
1, 2007, due to a ruptured left pectoralis muscle and lumbar disc
disease.
A Federal Reviewing Official denied his applications,
Administrative Record (“Admin. Rec.”) at 77-79, and claimant
requested a hearing before an Administrative Law Judge (“ALJ”).
On March 11, 2010, claimant, his attorney, and a vocational
expert appeared before an ALJ, who considered claimant’s
application de novo.
Five weeks later, the ALJ issued his
written decision, concluding that claimant retained the residual
functional capacity to perform the physical and mental demands of
a range of light work.
Admin. Rec. at 24.
Although claimant’s
limitations precluded him from performing his past relevant work
as a machine operator or warehouse worker, Admin. Rec. at 27, the
ALJ concluded that there was still a significant number of jobs
in the national economy that claimant could perform, id. at 2728.
Accordingly, the ALJ determined that claimant was not
disabled, as that term is defined in the Act, at any time prior
to the date of his decision.
Id. at 28.
Claimant then sought review of the ALJ’s decision by the
Decision Review Board, which was unable to complete its review
during the time allowed.
Admin. Rec. at 1.
Accordingly, the
ALJ’s denial of claimant’s application for benefits became the
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final decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by substantial
evidence and seeking a judicial determination that he is disabled
within the meaning of the Act.
Claimant then filed a “Motion for
Order Reversing Decision of the Commissioner” (document no. 11).
In response, the Commissioner filed a “Motion for Order Affirming
the Decision of the Commissioner” (document no. 12).
Those
motions are pending.
II.
Stipulated Facts.
Pursuant to this court’s Local Rule 9.1(d), the parties have
submitted a statement of stipulated facts which, because it is
part of the court’s record (document no. 13), need not be
recounted in this opinion.
Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I.
“Substantial Evidence” and Deferential Review.
Pursuant 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
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cause for a rehearing.”
Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence.
1383(c)(3).
See 42 U.S.C. §§ 405(g),
See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991) (holding that
it is “the responsibility of the [Commissioner] to determine
issues of credibility and to draw inferences from the record
evidence.
Indeed, the resolution of conflicts in the evidence is
for the [Commissioner], not the courts”).
Consequently, provided
the ALJ’s findings are properly supported, the court must sustain
those findings even when there may also be substantial evidence
supporting the contrary position.
See, e.g., Tsarelka v.
Secretary of Health & Human Services, 842 F.2d 529, 535 (1st Cir.
1988); Rodriguez v. Secretary of Health & Human Services, 647
F.2d 218, 222 (1st Cir. 1981).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
(1938).
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
It is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.
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Consolo v. Federal
Maritime Comm’n., 383 U.S. 607, 620 (1966).
See also Richardson
v. Perales, 402 U.S. 389, 401 (1971).
II.
The Parties’ Respective Burdens.
An individual seeking Social Security disability 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.”
§ 423(d)(1)(A).
See also 42 U.S.C. § 1382c(a)(3).
42 U.S.C.
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.
See
Vazquez v. Secretary of Health & Human Services, 683 F.2d 1, 2
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(1st Cir. 1982).
See also 20 C.F.R. §§ 404.1512(g) and
416.912(g).
In 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).
When determining whether a claimant is
disabled, the ALJ is also required to make the following five
inquiries:
(1)
whether the claimant is engaged in substantial
gainful activity;
(2)
whether the claimant has a severe impairment;
(3)
whether the impairment meets or equals a listed
impairment;
(4)
whether the impairment prevents the claimant from
performing past relevant work; and
(5)
whether the impairment prevents the claimant from
doing any other work.
20 C.F.R. § 404.1520.
See also 20 C.F.R. § 416.920.
a claimant is disabled only if his:
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Ultimately,
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. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
decision.
Discussion
I.
Background - The ALJ’s Findings.
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920.
Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: January 1, 2007.
Rec. at 23.
Admin.
Next, he concluded that claimant suffers from the
following severe impairments: “left upper extremity disorder and
degenerative disc disease of the lumbar spine.”
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Id. at 24.
Nevertheless, the ALJ determined that those impairments,
regardless of whether they were considered alone or in
combination, did not meet or medically equal one of the
impairments listed in Part 404, Subpart P, Appendix 1.
Rec. at 24.
Admin.
Claimant does not challenge any of those findings.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
a range of light work.1
He noted, however, that claimant cannot
perform jobs that involve reading or writing; he cannot perform
overhead reaching with his left arm; he can only occasionally
engage in tasks involving pushing, pulling, and horizontal
reaching with his left hand; he cannot climb ladders or
scaffolds; and he can only perform unskilled work, involving
routine, repetitive tasks.
Admin. Rec. at 24.
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In light of those
“RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*2 (July 2, 1996) (citation omitted).
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restrictions, the ALJ concluded that claimant was not capable of
returning to his prior job.
Id. at 27.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform.
Relying upon
the testimony of a vocational expert, the ALJ concluded that,
notwithstanding claimant’s exertional limitations, he “is capable
of making a successful adjustment to other work that exists in
significant numbers in the national economy.”
Id. at 28.
Consequently, the ALJ concluded that claimant was not “disabled,”
as that term is defined in the Act, through the date of his
decision.
II.
Weight Ascribed to Treating Source Opinions.
Claimant challenges the ALJ’s determination that he was
capable of performing a range of light work, asserting that the
ALJ failed to ascribe appropriate weight to the opinions of his
treating physicians or, alternatively, neglected to adequately
explain why he chose to discount those opinions.
The court
agrees.
In discussing the weight that will be given to the opinions
of “treating sources,” the pertinent regulations provide:
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Generally, we give more weight to opinions from [the
claimant’s] treating sources, since these sources are
likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) . . . When we do not
give the treating source’s opinion controlling weight,
we apply the factors listed [in this section] in
determining the weight to give the opinion. We will
always give good reasons in our notice of determination
or decision for the weight we give [the claimant’s]
treating source’s opinion.
20 C.F.R. § 404.1527(d)(2).
See also Social Security Ruling,
Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, SSR 962p, 1996 WL 374188 (July 2, 1996) (when the ALJ renders an
adverse disability decision, his or her notice of decision “must
contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case
record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that
weight.”) (emphasis supplied).
Here, in reaching the conclusion that claimant retained “the
residual functional capacity to perform light work,” Admin. Rec.
at 24, the ALJ gave “significant weight” to the opinion of the
state agency, non-examining physician, id. at 27.
The ALJ gave
“little weight” to the opinions of claimant’s treating
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physicians, Dr. Robert Bell (the surgeon who repaired claimant’s
torn pectoralis) and Dr. Jacinto Casio (claimant’s primary care
physician).
Id.
There is, of course, no per se rule requiring
the ALJ to give greater weight to the opinion of a treating
physician than that of a consulting physician.
See Arroyo v.
Secretary of Health & Human Services, 932 F.2d 82, 89 (1st Cir.
1991); Tremblay v. Secretary of Health & Human Services, 676 F.2d
11, 13 (1st Cir. 1982).
Nevertheless, when, as here, an ALJ
gives less than controlling weight to the opinions of treating
physicians, he or she must explain the reason(s) for doing so, in
a manner that is “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that
weight.”
SSR 96-2p, 1996 WL 374188 at *5.
In this case, the ALJ failed to adequately explain his
reasons for giving controlling weight to the non-examining
physician, while giving little weight to the opinions of
claimant’s treating physicians.
Instead, he simply declared that
the non-examining physician’s opinion was “given significant
weight because it is consistent with and supported by the
evidence of record,” while the opinions of claimant’s treating
physicians were given “little weight” because they are “not
consistent with or supported by the evidence of record.”
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Admin.
Rec. at 27.
Why that is so is not disclosed.
More than a
conclusory declaration is necessary, particularly given the fact
that the opinions of the non-examining physician and claimant’s
treating physician are so dramatically different.
With regard to the non-examining physician’s report, two
points are probably worth mentioning.
First, because that report
was prepared in April of 2008, it appears the author did not have
access to the results of claimant’s then-recent diagnostic
imaging (MRI) - testing that was ordered to determine the cause
of claimant’s chronic severe back pain.
But even if the non-
examining physician did have access to claimant’s MRI results,
his report makes no mention whatsoever of claimant’s degenerative
disc disease - an impairment the ALJ recognized as severe.
Admin. Rec. at 24.
Instead, the report makes reference simply to
claimant’s “chronic [left] pectoralis major rupture.”
Rec. at 335.
Admin.
Second, the report was prepared before Dr. Casio
(claimant’s treating physician) issued any of his three separate
opinions that claimant was, at least at the time, disabled and
unable to engage in any substantial gainful activity.
Rec. at 366, 394, and 438.
See Admin.
Consequently, the non-examining
physician did not have the benefit of Dr. Casio’s opinions, nor
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did he have the opportunity to explain his reasons for
disagreeing (or agreeing) with them.2
Given the fact that the non-examining state agency physician
completed his review of claimant’s medical records without the
benefit of plainly relevant medical information (e.g., results of
diagnostic imaging and the various opinions of treating
physicians), and given the fact that his report addresses only
one of claimant’s two severe impairments, it is difficult to
accept that report as being “consistent with and supported by the
evidence of record,” or to understand why it is entitled to
“significant weight,” particularly in the absence of an
explanation.
Plainly, further explanation by the ALJ is needed.
2
On May 26, 2010, Dr. Casio issued a fourth opinion
concerning claimant’s ability to engage in substantial gainful
activity: a “Medical Source Statement of Ability to do WorkRelated Activities,” in which he concluded, that claimant was
capable of lifting less than 10 pounds, could stand and walk for
fewer than 2 hours in an 8-hour day, and could sit for fewer than
6 hours in an 8-hour day. Admin. Rec. at 4-6. He supplemented
that report with a letter, in which he opined that claimant “is
not capable of sustaining gainful employment at this time” due to
“intractable low back pain from his significant lumbar disk
disease and chronic pain associated with the pectoralis muscle
rupture.” Id. at 7. But, because that form and the accompanying
medical opinions were issued after the ALJ rendered his adverse
disability decision, they are not properly at issue in this
appeal. See 20 C.F.R. § 405.430.
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Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 11) is granted to the
extent he seeks a remand to the ALJ for further proceedings.
The
Commissioner’s motion to affirm his decision (document no. 12) is
denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), this matter
is hereby remanded to the ALJ for further proceedings consistent
with this order.
The Clerk of Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
May 10, 2011
cc:
Janine Gawryl, Esq.
Gretchen L. Witt, Esq.
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