Waters v. US Social Security Administration, Commissioner
Filing
18
///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 13 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jennifer L. Waters
v.
Civil No. 13-cv-45-JL
Opinion No. 2014 DNH 050
Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Jennifer Waters appeals the Social Security Administration’s
(“SSA”) denial of her applications for a period of disability,
disability insurance benefits, and Supplemental Security Income.
An administrative law judge at the SSA (“ALJ”) ruled that, despite
Waters’ bipolar disorder, she retains the residual functional
capacity (“RFC”) to perform her past relevant work as a
housekeeper and laundry worker, and is therefore not disabled.
See 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Appeals Council
later denied Waters’ request for review of the ALJ’s decision, see
id. §§ 404.967, 416.1467, with the result that the ALJ’s decision
became the SSA’s final decision on Waters’ applications, see id.
§§ 404.981, 416.1481.
Waters then appealed the decision to this
court, which has jurisdiction under 42 U.S.C. § 405(g) (Social
Security).
Waters has filed a motion to reverse the decision, see L.R.
9.1(b)(1), arguing, among other things, that the ALJ erred in
concluding that Waters’ statements concerning the intensity,
persistence, and limiting effects of her symptoms were not
credible, and in failing to make any findings concerning the
physical and mental demands of Waters’ past relevant work.
The
Commissioner of the SSA maintains that the ALJ’s decision is
unassailable, and has cross-moved for an order affirming it.
L.R. 9.1(d).
See
After careful consideration, the court agrees with
Waters that the ALJ’s decision was flawed for both of the reasons
that Waters asserts, and thus grants her motion to reverse (and
denies the Commissioner’s motion to affirm) the ALJ’s decision.
I.
Credibility determination
In concluding that Waters retains the RFC to perform a full
range of work at all exertional levels, with two nonexertional
limitations (i.e., she can only understand, remember, and carry
out “short and simple” instructions, and cannot wait on the
public), the ALJ considered Waters’ subjective reports concerning
the symptoms of her impairment.
Although the ALJ found that
Waters’ bipolar disorder could reasonably be expected to cause
these symptoms–-which included mood swings, impulsivity, periods
of rage, anger outbursts, visual and aural hallucinations, and an
inability to handle stress and routine changes--he concluded that
Waters’ “statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible.”
at 17.
Admin. R.
While there may well be good reasons for this conclusion,
2
the court is unable to discern them from the ALJ’s written
decision, and is thus constrained to reverse the decision.
SSA guidance recognizes that “individuals may experience
their symptoms differently and may be limited by their symptoms to
a greater or lesser extent than other individuals with the same
medical impairments,” and that symptoms “sometimes suggest a
greater severity of impairment than can be shown by objective
medical evidence alone.”
Social Security Ruling (“SSR”) 96-7p,
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL
374186, at *3 (S.S.A. 1996).
In cases where an individual’s claim
of disability cannot be determined solely on the basis of the
objective medical evidence, ALJs must carefully consider “any
statements of the individual concerning his or her symptoms,” and
“then make a finding on the credibility of the individual’s
statements about symptoms and their functional effects.”
Id. at
*3-4.
As SSR 96-7p explains:
The reasons for the finding must be grounded in the
evidence and articulated in the determination or
decision. It is not sufficient to make a conclusory
statement that “the individual’s allegations have been
considered” or that “the allegations are not credible.”
It is also not enough for the adjudicator simply to
recite the factors that are described in the regulations
for evaluating symptoms. The 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
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to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s
statements and the reasons for that weight. This
documentation is necessary in order to give the
individual a full and fair review of his or her claim,
and in order to ensure a well-reasoned determination or
decision.
Id. at *4.
In other words, “[a]n ALJ is free to disbelieve a
claimant’s subjective testimony; however, he or she must make
specific findings as to the relevant evidence he considered in
determining to disbelieve [the claimant],” i.e., by identifying
“what testimony is not credible and what evidence undermines the
claimant’s complaints.”
Kalloch v. Astrue, No. 11-cv-522, 2012 WL
4930986, at * (D.N.H. Sept. 18, 2012) (internal quotations and
alterations omitted), rept. & rec. adopted, 2012 WL 4930983
(D.N.H. Oct. 15, 2012).
Here, the ALJ’s assertion that Waters’ statements regarding
her symptoms were “not credible” can only be characterized as
conclusory.
That assertion is followed by several paragraphs
discussing the record evidence, but it is by no means clear to the
court that the ALJ meant these paragraphs to function as an
explanation of his credibility determination.
To the contrary,
those paragraphs appear to be intended to explain the ALJ’s
assessment of Waters’ RFC.
In any event, the ALJ’s decision is
not “sufficiently specific to make clear to” this court which of
Waters’ specific complaints the ALJ found not credible, nor the
4
specific evidence the ALJ considered in coming to that conclusion.
It therefore fails to comply with SSR 96-7p.
Beyond that, the ALJ’s decision says very little about the
factors articulated in 20 C.F.R. §§ 404.1529(c) and 416.929(c),
which an ALJ “must consider in addition to the objective medical
evidence when assessing the credibility of an individual’s
statements.”1
SSR 96-7p, 1996 WL 374186 at *3.
“Detailed written
discussion” of those factors “is desirable” in order to enable a
1
Those factors are:
1.
The individual’s daily activities;
2.
The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
3.
Factors that precipitate and aggravate the
symptoms;
4.
The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken
to alleviate pain or other symptoms;
5.
Treatment, other than medication, the individual
receives or has received for relief of pain or
other symptoms;
6.
Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a
board); and
7.
Any other factors concerning the individual’s
functional limitations and restrictions due to pain
or other symptoms.
20 C.F.R. §§ 404.1529(c), 416.929(c). The ALJ’s written decision
mentions some of Waters’ activities of daily living and some of
the medication she has taken, but is otherwise devoid of any
discussion of these factors–-including, significantly, the
“duration, frequency, and intensity” of Waters’ claimed symptoms
and the “[f]actors that precipitate and aggravate” them.
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reviewing court to evaluate the basis for the ALJ’s credibility
determination.
Lalime v. Astrue, 2009 DNH 053, at 23-24 (citing
Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987)).
It is not strictly necessary; “an ALJ need not slavishly discuss
each of the factors, and may satisfy her obligation to consider
the factors simply by exploring them at the administrative
hearing.”
Morris v. Colvin, No. 12-cv-280-JL, 2013 WL 2455975, at
*2 n.1 (D.N.H. June 6, 2013) (internal quotations and citations
omitted).
Here, however, the transcript of the administrative
hearing is nearly as devoid of discussion regarding these factors
as the ALJ’s decision itself.
In short, the ALJ’s decision “simply does not explain, in any
way,” the reasons for his credibility determination, and thus must
be reversed because the court cannot determine whether that
determination is supported by substantial evidence.2
Weaver v.
2
The court acknowledges that Waters advanced a slightly
different argument regarding the sufficiency of the ALJ’s
credibility determination. Rather than arguing that the ALJ had
not explained his findings in accordance with SSR 96-7p, Waters
argued that the ALJ had “ignored pertinent evidence bearing on
[her] credibility.” Memo. in Supp. of Mot. to Reverse (document
no. 8-1) at 13. The Commissioner might understandably protest
that, in light of this fact, Waters has waived any argument that
the ALJ’s explanation of his findings was not up to snuff. The
ALJ’s insufficient explanation, however, makes it impossible for
the court to analyze the argument that Waters actually did make,
so her failure to seize upon the insufficiency presents no hurdle
to the court considering it here.
As a further aside, the court notes that Waters has also
challenged the weight the ALJ assigned to the medical opinion
6
Astrue, No. 10-cv-340-SM, 2011 WL 2580766, at *9 (D.N.H. May 25,
2011) (emphasis in original), rept. & rec. adopted, 2011 WL
2579776 (D.N.H. June 27, 2011).
On remand, the ALJ should
thoroughly explain the bases for any finding he makes regarding
Waters’ credibility, as required by SSR 96-7p and §§ 404.1529(c)
and 416.929(c).
II.
Past relevant work
As mentioned at the outset, the ALJ also concluded that
Waters is able to perform her past relevant work as a housekeeper
and laundry worker.
The written decision explained that the ALJ
had compared Waters’ RFC “with the physical and mental demands” of
that work, and found that Waters “is able to perform it as
actually and generally performed.”
Admin. R. at 19.
The decision
did not, however, explain what “the physical and mental demands”
evidence in the record. Among other things, Waters argues that
the ALJ erred in assigning “little weight” to the opinion of a
state examiner that Waters experienced repeated functional loss in
the area of work-related stress. The ALJ’s decision in this
regard was influenced by the fact that the examiner’s opinion was
“based on [Waters’] subjective statements”–-which, of course, the
ALJ did not find credible. Admin. R. at 18. Because the case is
being remanded to the ALJ to re-evaluate Waters’ credibility, the
ALJ’s assessment may change, and the court need not address this
argument at this time. (Similarly, to the extent that Waters
believes the ALJ did not adequately develop the record during his
questioning of her at the administrative hearing, that is also a
matter that is best addressed on remand, rather than in this
court.)
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of Water’s previous jobs were.
Again, this hinders review of the
ALJ’s finding and warrants remand.
SSA guidance mandates that “[t]he rationale for a disability
decision must be written so that a clear picture of the case can
be obtained,” and “must follow an orderly pattern and show clearly
how specific evidence leads to a conclusion.”
SSR 82-62, Titles
II and XVI: A Disability Claimant’s Capacity to Do Past Relevant
Work, in General, 1982 WL 31386, at *4 (S.S.A. 1982).
This means,
among other things, that when the ALJ finds that a claimant has
the RFC to perform a past relevant job, the ALJ’s “determination
or decision must contain among the findings” a specific finding of
fact “as to the physical and mental demands of the past
job/occupation.”
Id. (emphasis added).
to make any such finding here.
As noted, the ALJ failed
The Commissioner does not dispute
this, but argues that the decision is nonetheless sound because
the record contained information regarding the demands of Waters’
housekeeping and laundry jobs, in the form of (1) Waters’
description of those jobs in her Work History Report, and (2) a
cursory, 1-page “vocational assessment” that identifies a Waters’
jobs as corresponding to a listing in the Dictionary of
Occupational Titles (“DOT”).
The presence of that evidence in the record does not remedy
the ALJ’s omission.
It is true that, in some cases, an ALJ’s
failure to make specific findings regarding the physical and
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mental demands of the claimant’s past relevant work may be
harmless, i.e., where it is clear that the ALJ relied upon “the
claimant’s own description of the job demands in her Work History
Report and at the hearing,” Ormond v. Colvin, 2013 DNH 146, 14, or
upon the DOT’s description of the job demands, see Sullivan v.
Halter, 2001 DNH 221, 16-17.
Yet it is by no means clear that the
ALJ relied upon either of these sources in rendering his decision
in this case (or that he reasonably could have).
The description
of the mental demands of Waters’ past work provided in her Work
History Report is at best superficial, and was not meaningfully
developed by her hearing testimony.3
And, as the Commissioner
herself notes, the written decision did not cite the DOT or any
other vocational evidence, either in its discussion of Waters’
past relevant work or anywhere else.
This court cannot “assume or
infer” that the ALJ relied upon the DOT listings; “[m]oreover,
even if the court could assume that the ALJ made his determination
by reference to the DOT, there is no way of knowing whether he
relied on the listing that [the Commissioner], or even this court,
3
While the court has declined to address Waters’ argument
that the ALJ erred in failing to develop the record, see n.2,
supra, it observes that, in light of the superficiality of the
Work History Report and Waters’ pro se status at the time of the
administrative hearing, the ALJ probably should have thoroughly
examined Waters regarding the demands of her previous jobs at the
hearing. Cf. Berthiaume, 1999 WL 814267 at *5 (where claimant’s
application for benefits provided only vague information regarding
her past jobs, ALJ’s “duty to further develop the record” was
triggered).
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might think most closely describes claimant’s past relevant work.”
Berthiaume v. Apfel, No. 98-cv-419, 1999 WL 814267, at *6 (D.N.H.
Sept. 30, 1999).
In these circumstances, the ALJ’s failure to
make any finding as to the physical and mental demands of Waters’
past relevant work makes it “impossible to conclude that
substantial evidence supported the finding that [Waters] had the
RFC to return to [her] past work,” and requires remand.
Stephens
v. Barnhart, 50 Fed. Appx. 7, 9 (1st Cir. 2002).
III. Conclusion
For the foregoing reasons, Waters’ motion to reverse the
ALJ’s decision4 is GRANTED, and the Commissioner’s motion to
affirm it5 is DENIED.
See 42 U.S.C. § 405(g).
The clerk shall
enter judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: March 7, 2014
cc:
Raymond J. Kelly, Esq.
Robert J. Rabuck, Esq.
T. David Plourde, Esq.
4
Document no. 8.
5
Document no. 13.
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