Eley v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER denying 7 Motion to Reverse Decision of Commissioner; granting 9 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
William E. Eley
v.
Civil No. 14-cv-165-JL
Opinion No. 2015 DNH 085
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
William E. Eley has appealed the Social Security
Administration’s denial of his application for a period of
disability and disability insurance benefits.
An administrative
law judge at the SSA (“ALJ”) ruled that, despite Eley’s severe
impairments (degenerative disc disease of the lower spine and
obesity), he retains the residual functional capacity (“RFC”) to
perform sedentary work with specified limitations, allowing him
to perform jobs that exist in significant numbers in the national
economy in significant numbers and, as a result, is not disabled.
See 20 C.F.R. § 404.1505(a).
The Appeals Council later denied
Eley’s request for review, see id. § 404.968(a), with the result
that the ALJ’s decision became the final decision on Eley’s
application, see id. § 404.981.
Eley then appealed the decision
to this court, which has jurisdiction under 42 U.S.C. § 405(g)
(Social Security).
Eley has filed a motion to reverse the decision, see L.R.
9.1(b)(1), challenging it as unsupported by substantial evidence.
Specifically, Eley argues that the ALJ erred in assessing his RFC
by (1) giving little weight to the opinion of Eley’s treating
physician, and (2) giving greater weight to the opinion of a
non-examining agency physician.
The Acting Commissioner of the
SSA has cross-moved for an order affirming the ALJ’s decision,
see L.R. 9.1(e), defending the ALJ’s handling of the opinion
evidence.
After careful consideration, the court agrees with the
Acting Commissioner that the ALJ did not err in evaluating the
opinion evidence, and therefore denies Eley’s motion to reverse
(and grants the Acting Commissioner’s motion to affirm) the ALJ’s
decision.
The ALJ found that Eley retained the RFC to perform
sedentary work with a few limitations, including that he requires
the opportunity to stand up and sit down as needed.
In
evaluating Eley’s RFC, the ALJ had two medical opinions at his
disposal:
that of Eley’s treating physician, Dr. Daniel Calores,
and that of a state agency reviewing physician, Dr. Hugh Fairley.
In July 2011, Dr. Fairley, who did not examine Eley,
reviewed Eley’s medical records and prepared an assessment of his
RFC.
Dr. Fairley acknowledged Eley’s chronic lower back pain,
leg pain and “significant lumbar degen[erative] disease,” and
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noted that “[e]pidurals & RFAs provided no lasting benefit.”
Admin. R. at 423.
Nevertheless, Dr. Fairley opined that Eley was
capable of working full time and that he had the capacity to lift
and/or carry 20 pounds occasionally and less than that
frequently; he could stand and/or walk at least two hours but no
more than four hours in an 8-hour workday; and he could sit for
about six hours in an 8-hour workday.
In June 2012, Eley’s treating physician, Dr. Calores, made a
different assessment of Eley’s RFC, believing that Eley’s chronic
low back pain imposed more significant limitations.
While Dr.
Calores indicated that Eley could “perform sedentary activities,
including frequent sitting or occasional standing/walking such as
classroom situations, desk work, counseling sessions or other
appointments,” id. at 533, he concluded that Eley could only sit
for at most two hours daily, and for only 10-15 minutes without
interruption, and that he could only stand or walk for one hour
each daily, again for only 10-15 minutes without interruption.
Dr. Calores further concluded that Eley could only occasionally
lift 10-20 pounds and carry 10 pounds.
In summary, Dr. Calores
opined, Eley was unable to “work part or full time due to chronic
pain [in the] low back [and] legs.”
Id.
The ALJ afforded Dr. Fairley’s opinion “greater weight,”
finding it to be ”most consistent with the records showing that
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the claimant has remained quite active caring for his children”
and “consistent with records from Dr. Brown who noted that the
claimant was doing well in March 2012.”
Id. at 17.
In contrast,
the ALJ afforded “limited weight” to Dr. Calores’s opinion,
reasoning that his opinion was “internally inconsistent and []
not well supported by his own clinical observations.”
Id.
The
ALJ explained:
In January 2011, [Dr. Caloras] opined that the claimant
was not capable of working even part-time, but in June
2012, he described the claimant as able to lift and
carry 10-20 pounds. Moreover, in June 2012, he opined
that the claimant could perform sedentary activities
including frequent sitting or occasional standing and
walking such as is required for deskwork. In this
case, Dr. Caloras’s opinion is internally inconsistent
and is not well supported by his own clinical
observations.
Id.
Adopting Dr. Fairley’s opinion, the ALJ concluded that Eley
“has the residual functional capacity to perform sedentary work
as defined in 20 C.F.R. § 404.1567(a) and 416.967(a) except the
claimant requires the opportunity to alternate sitting and
standing as needed.”
Id. at 15.
Eley maintains that the ALJ’s
allocation of weight to the competing medical opinions and,
resultantly, this conclusion, was erroneous.
disagrees.
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The court
Treating Source Opinion
In arguing that the ALJ should have afforded more weight to
Dr. Caloras’s opinion, Eley invokes the SSA's rule that more
weight should generally be accorded to treating sources than nontreating sources.
20 C.F.R. § 404.1527(c)(1).
The opinion of a
treating physician must be given controlling weight if it is well
supported and not inconsistent with other evidence on the record.
Id. § 404.1527(c)(2).
If controlling weight is not afforded the
opinion of a treating source, the ALJ must “give good reasons”
for the weight afforded that source.
Id. § 404.1527(c)(2).
“The
‘good reasons’ requirement mandates that the ALJ's order ‘must
contain specific reasons for the weight given to the treating
source’s medical opinion, supported by 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 reasons for that weight.’”
Delafontaine v. Astrue, 2011 DNH 005, at 38-39 (quoting Social
Security Ruling (“SSR”) 96-2p, Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, 1996 WL
374188, at *5 (S.S.A. 1996)).
The ALJ need not, as Eley
suggests, explicitly take account of all the factors articulated
in 20 C.F.R. § 404.1527(c) in determining what weight to give a
treating physician’s opinion, so long as the court is “able to
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discern the rationale the ALJ used to reach his determination and
that determination is founded on ‘good reasons’ that are
supported by substantial record evidence.”
Figueroa v. Astrue,
2012 DNH 101, at 15 (Barbadoro, J.).
In this case, the court concludes that the ALJ could
properly limit the weight given to the treating source opinions
because the record supports his finding that Dr. Caloras’s
opinions were inconsistent and not supported by his clinical
observations.
The ALJ first discounted Dr. Caloras’s opinion on the
grounds that Dr. Caloras “provided inconsistent opinions” because
he opined in January 2011 that Eley “was not capable of working
even part-time,” but in June 2012 described Eley as “able to lift
and carry 10-20 pounds” and capable of “perform[ing] sedentary
activities including frequent sitting or occasional standing and
walking such as is required for deskwork.”
Admin. R. at 17.
Eley argues that the ALJ misconstrued Dr. Caloras’s opinion to
find inconsistency where none existed.
The court disagrees.
On the “Physician/Clinician Statement of Capabilities” form
that Dr. Caloras filled out on June 27, 2012, Dr. Caloras
assessed Eley as able to “perform sedentary activities including
frequent sitting or occasional standing/walking such as is
required for . . . desk work,” sit for two hours daily, and stand
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and walk each for one hour daily.
Id. at 553.
He did not
indicate that any “added breaks or change of position” were
necessary.
Id.
That same day, Dr. Caloras completed a second
evaluation in which he indicated that Eley could sit no more than
2 hours per day and stand and/or walk for one hour per day.
Here, Dr. Caloras indicated that Eley could do none of these for
more than 10-15 minutes at a time.
In both cases, Dr. Caloras
concluded that Eley was not capable of working full- or parttime.
Thus, on the one hand, Dr. Caloras opined that Eley could
perform activities requiring “frequent sitting or occasional
standing/walking” for up to four hours; on the other, he opined
that Eley could not work even part-time.
Similarly, Dr. Caloras
indicated on one form that Eley required frequent changes in
position, but did not mention this limitation on the other.
This
evidence supports the ALJ’s determination that Dr. Caloras’s
opinions are internally inconsistent.
The court does agree with Eley that there is no inherent
inconsistency between Dr. Caloras’s June 2012 conclusion that
Eley could occasionally lift 10-20 pounds and his January 2011
conclusion that Eley was not capable of working full- or parttime.
The ability to occasionally lift up to 20 pounds and carry
up to 10 pounds alone does not alone render an individual able to
work even part-time.
However, because substantial evidence
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supports the ALJ’s other justifications for discounting Dr.
Caloras’s opinion, this is not dispositive.
The ALJ’s finding that Dr. Caloras’s opinion was “not well
supported by his own clinical observations,” id. at 17, is also
supported by substantial evidence.
As described supra, Dr.
Caloras provided his opinions on two forms, both dated June 27,
2012.
Both forms are essentially check-box forms in which Dr.
Caloras selected the appropriate box and filled in the
appropriate blanks.
Though both forms provided an opportunity
for Dr. Caloras to indicate which observations or analyses
supported his selections, he did not do so except to reference
Eley’s back pain in a general manner.
For example, on the
Medical Assessment of Ability to do Work-Related Activities form,
when asked to provide the medical findings in support of Dr.
Caloras’s opinion that Eley can only stand or walk for one hour
in an eight-hour day, Dr. Caloras wrote only, “[increased] lower
back & leg pain with too much walking.”
Id. at 528.
In response
to the same question seeking support for his opinion that Eley
can only sit for up to two hours in an eight-hour day, Dr.
Caloras wrote, “[increased] pain with excess sitting with
stiffness & pain in lower back.”
Id.
Similarly, on the
Physician/Clinician Statement of Capabilities form, Dr. Caloras’s
only explanation for his conclusions was that Eley had an
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“[i]nability to work part or full time due to chronic pain\low
back\legs.”
Id. at 533.
The ALJ correctly discounted these
opinions because they lacked explanation or even reference to Dr.
Caloras’s own treatment notes, and therefore were not supported
by Dr. Caloras’s clinical observations.
See McGrath v. Astrue,
2012 DNH 060, at 13 n.13; 20 C.F.R. § 404.1527(d)(3); cf.
Tremblay v. Sec’y of HHS, 676 F.2d 11, 13 (1st Cir. 1982)
(treating physician’s opinion entitled to no more weight than a
consulting physician’s if the disability assessment is
conclusory).
Attempting to show that Dr. Caloras’s previous conclusions
supported his June 2012 opinions, Eley points to a series of six
letters written by Dr. Caloras between January 2011 and October
2011.
In these letters, Dr. Caloras asked that Eley be excused
from his child support duties because he was unable to work fullor part-time.
As the Acting Commissioner correctly observes,
these letters simply state that Eley was unable to work because
of back pain.
Because, like Dr. Caloras’s June 27, 2012
opinions, they are cursory and lack any analysis, as explained
supra, the ALJ can properly give such an opinion less weight.
Eley also argues that office notes from specialists at
Dartmouth Hitchcock Medical Center, of which Dr. Caloras received
copies, also support Dr. Caloras’s opinions.
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But Dr. Caloras
does not reference these office notes in his opinions.
Nor does
he explain how (or even that) he relied on them in forming his
opinions.
Without analysis by the opining physician, it would be
an error for the ALJ to analyze these records himself, for except
in the rare case “where the medical evidence shows relatively
little physical impairment,” Manso-Pizarro v. Sec’y of HHS, 76
F.3d 15, 17 (1st Cir. 1996)--which is not this case--an ALJ
“cannot assess the claimant’s RFC himself, ‘since bare medical
findings are unintelligible to a laypeson in terms of RFC.’”
Levesque v. Colvin, 2014 DNH 191, at 2-3 (quoting Gordils v.
Sec’y of HHS, 921 F.2d 327, 329 (1st Cir. 1990)).
Since it is the province of the ALJ to weigh the evidence
and there is substantial support for the ALJ’s decision to
discount Dr. Caloras’s opinion, see Tremblay, 676 F.2d at 12, the
court finds no error.
Consulting Source Opinion
Having determined that the ALJ could reasonably discount the
RFC assessments of Dr. Caloras, the court must now consider
whether he was justified in relying more heavily on the opinion
of Dr. Fairley, a non-treating physician.
The ALJ need not grant
the treating physician’s opinion greater weight than a consulting
physician’s when, as here, the treating physician’s assessment is
conclusory.
Tremblay, 676 F.2d at 13.
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“The ALJ's decision to
adopt an assessment by a non-treating physician is further
supported if that assessment references specific medical findings
indicating that the claimant's file was reviewed with care.”
Moss v. Astrue, 2011 DNH 064, at 46 (citing Berrios Lopez v.
Sec’y of HHS, 951 F.2d 427, 431 (1st Cir. 1991)).
The ALJ explained that he afforded “greater weight” to the
opinion of the state agency reviewing physician, Dr. Fairley, for
two reasons:
(1) Dr. Fairley’s opinion was “most consistent with
the records showing that the claimant has remained quite active
caring for his children,” and (2) his opinion was consistent with
the records of Eley’s rheumatologist, Dr. Lin A. Brown.
R. at 17.
Admin.
Eley challenges this reasoning as “inadequate.”
Cl.
Br. at 11.
First, Eley faults the ALJ for what he perceives as an overreliance on Eley’s daily activities caring for his children.
Eley contends that, because he only obtained custody of his
children in June 2012 and had difficulty caring for them himself,
those activities do not support an RFC of sedentary work.1
While
the ability to perform basic household tasks, taken alone, “does
1
Specifically, Eley testified that, during the summer, his
parents helped him care for his children because, “with my back
pain and what not I’m not able to keep up with the children like
they want me to.” Admin. R. at 38. The ALJ questioned the
credibility of Eley’s testimony that his pain increased with
activity, however. See id. at 16. Eley does not dispute that
conclusion.
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not equate with an ability to perform substantial gainful
activity,” Delafontaine, 2011 DNH 005, at 11, evidence in the
record reflects that Eley was able to do more than merely give
basic care to his children.
In addition to preparing meals for
the children, getting them ready for school and onto the school
bus, helping them with their homework, and doing household chores
such as vacuuming and dishes, evidence in the record also shows
that Eley was able to “play video games, use a computer, . . .
drive, play games online with others and go fishing.”
Admin. R.
at 14.
Eley also argues that the ALJ misconstrued Dr. Brown’s
March 22, 2012 observation that “Mr. Eley has done well with
Humira,” a drug prescribed for his joint pain, to mean that Eley
was “doing well” overall in March 2012.
Cl. Br. at 12.
To the
contrary, the ALJ’s conclusion does not appear to have been based
on a single sentence concerning Humira, but on Dr. Brown’s report
as a whole.
For example, after that same visit, Dr. Brown noted
that Humira “made a significant improvement in [Eley’s] back
pain” and that Eley “had about a 60% improvement from baseline”
and reported that he “only ached at the end of the week.”
R. at 514.
Admin.
Eley’s treating physician, Dr. Caloras, noted similar
improvements, observing a few months later--in July 2012--that
the Humira “helped [Eley’s] whole body and joint pain.”
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Id. at
547.
The ALJ did not clearly err by interpreting Dr. Brown’s
statements to mean that Eley was “doing well” in March 2012, nor
in finding Dr. Fairley’s opinion consistent with those
statements.
Accordingly, the court concludes that the ALJ did
not err in choosing to assign greater weight to Dr. Fairley’s
decision.2
Conclusion
As this court has observed, an ALJ can rely “on the
assessments of non-testifying, non-examining physicians” in
adjudicating a claimant’s RFC, and conflicts between those
assessments and other medical testimony “are for the ALJ to
resolve.”
Morin v. Astrue, 2011 DNH 091, 9-10 (citing Tremblay,
676 F.2d at 12).
Furthermore, “[t]he ALJ decision to resolve
that conflict against the claimant should be affirmed if “‘that
conclusion has substantial support in the record.’”
Tremblay, 676 F.2d at 12).
Id. (quoting
Because, for the reasons just
2
Finally, Eley argues that the ALJ erred when he posed a
hypothetical question to the vocational expert that was “based
upon the functional limitations found by the state agency.” Cl.
Br. at 13. Having concluded that the ALJ’s RFC determination was
proper and supported by substantial evidence in the record, the
court finds no error.
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explained, that is the case here, Eley’s motion to reverse the
SSA’s decision3 is DENIED, and the Commissioner’s motion to
affirm it4 is GRANTED.
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: April 21, 2015
cc:
Bennett B. Mortell, Esq.
Robert J. Rabuck, AUSA
3
Document no. 7.
4
Document no. 9.
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