Buccellato v. US Social Security Administration, Acting Commissioner

Filing 16

///ORDER granting 12 claimant's Motion to Reverse Decision of Commissioner to the extent he seeks a remand for further proceedings; and denying 14 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Peter Buccellato,
Claimant
v.

Case No. 14-cv–335-SM
Opinion No. 2016 DNH 066

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), claimant,
Daniel Buccellato, moves to reverse the Acting Commissioner’s
decision denying his application for Disability Insurance
Benefits under Title II of the Social Security Act (the “Act”),
42 U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI of the Act, 42 U.S.C. §§ 1381-1383(c).

The Acting

Commissioner objects and moves for an order affirming her
decision.

For the reasons discussed below, the matter is remanded for
further proceedings consistent with this order.

Factual Background
I.

Procedural History.
In 2011, Buccellato filed an application for Disability

Insurance Benefits and Supplemental Security Income Benefits,
alleging that he had been unable to work since January 14, 2011,
due to multiple surgeries on his right knee with limited mobility
and pain, bipolar disorder, ulcers, gout, high blood pressure,
high cholesterol and a donated kidney.

Administrative Record

(“Admin. Rec.”) at 111-112, 200-12, 263.

That application was

denied initially and on reconsideration.

Id. at 67-116, 123-36.

Buccellato then requested a hearing before an Administrative Law
Judge (“ALJ”).

Id. at 137-38.

On June 11, 2013, Buccellato, his attorney, and a vocational
expert appeared before an ALJ, who considered claimant’s
application de novo.

Two weeks later, on June 26, 2013, the ALJ

issued his written decision, concluding that Buccellato was not
“under a disability,” as defined in the Act, from January 14,
2011, through the date of his decision.

Id. at 34.

Buccellato then sought review of the ALJ’s decision by the
Appeals Council.

Id. at 22.

By notice dated June 16, 2014, the

Appeals Council denied Buccellato’s request for review.
1-4.

Id. at

Accordingly, the ALJ’s denial of Buccellato’s application

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for benefits became the final decision of the Commissioner,
subject to judicial review.

Id. at 1.

Subsequently, Buccellato

filed a timely action in this court, asserting that the ALJ’s
decision is not supported by substantial evidence.

Buccellato

then filed a “Motion for Order Reversing Decision of the
Commissioner” (document no. 12).

In response, the Acting

Commissioner filed a “Motion for Order Affirming the Decision of
the Commissioner” (document no. 14).

II.

Those motions are pending.

Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is
part of the court’s record (document no. 15), 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
cause for a rehearing.”

Factual findings and credibility

determinations made by the Commissioner are conclusive if

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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).

Substantial

evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Co. v. NLRB, 305 U.S. 197, 229 (1938).

Consolidated Edison

It is something less than

a preponderance of the evidence, so the possibility of drawing
two inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by
substantial evidence.

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 SSI and DIB 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.”
See also 42 U.S.C. § 1382c(a)(3).

42 U.S.C. § 423(d)(1)(A).
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

4

(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, in light
of his age, education, and prior work experience.

See Vazquez v.

Secretary of Health & Human Services, 683 F.2d 1, 2 (1st Cir.
1982).

See also 20 C.F.R. §§ 404.1512(f) and 416.912(f).

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).

Ultimately, a claimant is disabled only if his:

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
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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 her
decision.

Background - The ALJ’s Findings
In concluding that Buccellato 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.
U.S. 20, 24 (2003).

See generally Barnhart v. Thomas, 540

Accordingly, he first determined that

Buccellato had not been engaged in substantial gainful employment
since the date of his alleged onset of disability: January 14,
2011.

Admin. Rec. at 28.

Next, he concluded that Buccellato

suffers from the following severe impairments: “degenerative disc
disease of the knees,1 obesity and polysubstance abuse (20 CFR

1

Claimant correctly points out that this is an incorrect
classification of his knee problems (as there are no “discs” in
the knee), and he actually suffers from degenerative joint
disease of the knee. Cl.’s Br. in Supp. of Mot. (document no.
12-1), pp. 4-5. However, “[i]n the context of social security
cases, errors in ALJ decisions have been excused as mere
scrivener's errors when the ALJ's intent was apparent.” Hudon v.
6

404.1520(c) and 416.920(c)).”

Id. at 28.

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.

Admin. Rec. at 30.

The ALJ also considered claimant’s diagnoses of
hypertension, gout of the first left metatarsal, GERD, depression
and anxiety, and found that those conditions were nonsevere.
at 29.

Id.

With respect to depression and anxiety, the ALJ

specifically noted that Buccellato had not sought counseling
during the period under review, and that “[such] lack of
treatment is very strong evidence that his mental health
conditions are not as severe as he alleged,” and do not “cause
more than minimal limitation in the claimant’s ability to perform
basic mental work activities.”

Id. at 29.

Buccellato does not

challenge any of those findings.

Next, the ALJ concluded that Buccellato retained the
residual functional capacity (“RFC”) to perform the exertional

Astrue, No. 10-CV-405-JL, 2011 WL 4382145, at *4 (D.N.H. Sept.
20, 2011). Here, the record evidence makes clear that the
incorrect classification was an inadvertent typographical error
by the ALJ. At the hearing, the ALJ stated that he understood
that the claimant suffered from degenerative joint disease, and,
in his order, he extensively discussed the claimant’s history of
knee impairment. See Admin. Rec. at 41, 29.
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demands of sedentary work.2

He noted, however, that Buccellato

should avoid all ladders, ropes and scaffolding; cannot perform
jobs that involve kneeling, crouching, or crawling; he should
avoid all pushing and pulling with the lower extremities; and he
can only occasionally stoop.

Admin. Rec. at 30.

In support of

that conclusion, the ALJ considered the testimony of Buccellato
at the evidentiary hearing, but determined that the objective
medical evidence in the record did not support Buccellato’s
allegations.

The ALJ also considered the medical opinions

offered by the state agency medical consultant, Dr. Patricia
Pisanelli, who opined that the claimant “could stand or walk for
[four] hours, and sit for about [six] hours during an [eight]hour work day,” as well as the October 2012 medical opinion of
the claimant’s treating physician, Dr. Michael Sparks, who opined
that claimant had no work capacity “at the current time, but made
clear that his opinion was temporary only.”

1

Id. at 32.

In light

“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
impairments, 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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of the aforementioned restrictions, the ALJ concluded that
Buccellato was not capable of returning to his prior job.

Id. at

33.

Finally, the ALJ considered whether there were any jobs in
the national economy that Buccellato might perform.

Relying upon

the testimony of a vocational expert, the ALJ concluded that,
notwithstanding Buccellato’s exertional limitations, he “is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.”
Rec. at 34.

Admin.

Consequently, the ALJ concluded that Buccellato was

not “disabled,” as that term is defined in the Act, through the
date of his decision.

Discussion
Buccellato challenges the ALJ’s decision on three grounds,
asserting that the ALJ erred by: (1) failing to properly assess
Buccellato’s credibility; (2) failing to properly analyze
Buccellato’s impairments in the RFC; and (3) ignoring relevant
evidence from a treating medical source.

The majority of claimant’s arguments lack merit.

However,

for the reasons set forth herein, the court agrees that the ALJ

9

failed to properly assess Buccellato’s credibility, and remands
on that basis.

Buccellato makes two arguments regarding the ALJ’s
credibility assessment.

First, he argues that the ALJ failed to

take into account evidence in claimant’s medical record that
corroborates claimant’s subjective testimony regarding his knee
impairment.

Second, he argues that the ALJ erred in his

credibility assessment by failing to assess the credibility of
Buccellato’s statements regarding his depression and anxiety.

Social Security Ruling 96-7p sets out a two-step inquiry
that an ALJ must follow when evaluating the veracity of a
claimant’s sujective complaints.

Otero v. Colvin, No.

14-CV-206-PB, 2015 WL 5089810, at *4 (D.N.H. Aug. 27, 2015)
(citing SSR 96-7p, 1996 WL 374186, at *2).

The ALJ must first

consider whether the claimant suffers from “an underlying
medically determinable physical or mental impairment” that could
reasonably be expected to produce his or her symptoms.

Id.

Second, the ALJ must determine whether the claimant’s statements
about his symptoms are substantiated by objective medical
evidence, and, if not, the ALJ must consider other relevant
information to weigh the credibility of the claimaint’s
statements.

Id.

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1.

Knee Impairment

After determining that Buccellato suffers from a medically
determinable underlying impairment that could produce his
symptoms,3 the ALJ reviewed the objective medical evidence
relating to Buccellato’s knee and determined that it did not
substantiate his allegations.

Admin. Rec. at 31-32.

More

specifically, the ALJ found that the objective medical evidence
“fails to support a finding of total disability and is more
consistent with an ability to perform at least a range of
sedentary exertion work.”

Admin. Rec. at 32.

The ALJ noted

that, contrary to Buccellato’s testimony, “the claimant was
generally noted to exhibit full strength in his lower
extremities, good range of motion normal reflexes and sensation
and a normal gait,” aside from brief periods following his knee
surgeries.

Admin. Rec. at 32 (citations omitted).

With respect

to Buccellato’s allegations regarding instability, the ALJ noted
that “records consistently indicated that the claimant was able
to maintain coordination throughout the majority of the period as

3

As discussed, the ALJ did mischaracterize Buccellato’s knee
impairment in his order as “degenerative disc disease of the
knee.” However, Buccellato points to no evidence in the record
that supports his argument that this mischaracterization
constitutes anything more than a typographical error. Nor does
the claimant offer any explanation with respect to how that
incorrect classification “over simplifies” his knee problems.
Cl.’s Br. in Supp. of Mot., p. 5.
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well as full stability in both of his knees.”

Admin. Rec. at 32

(citations omitted).

Claimant takes issue with that finding, arguing that the
“ALJ summarized three surgeries with subsequent strict nonbearing
instructions as ‘acute injury’ and failed to recognize the
consistent MRI and CT scans which corroborated Plaintiff’s
allegations of pain.”

Cl.’s Br. in Supp. of Mot., p. 7.

To be

sure, there is medical evidence in the record that supports
Buccellato’s allegations.

However, “‘[i]t is the ALJ's

prerogative to resolve conflicting evidence, and [the court] must
affirm such a determination, even if the record could justify a
different conclusion, so long as it is supported by substantial
evidence.’”

Ellison v. Colvin, No. 14-CV-35-PB, 2015 WL 226027,

at *2 (D.N.H. Jan. 16, 2015) (quoting Vazquez-Rosario v.
Barnhart, 149 Fed. Appx. 8, 10 (1st Cir. 2005)).

And, based on

the court’s review of the record, there is substantial evidence
in the record supporting the ALJ’s findings.

See, e.g., Admin.

Rec. at 324, 373-74, 376, 393, 431, 443, 476, 484, 488, 501-502,
503, 538, 958, 966, 1076-1077, 1121, 1179, 1188, 1192, 1365,
1368, 1374.

Accordingly, the ALJ’s determination on the issue is

entitled to deference.

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2.

Mental Impairment

However, Buccellato’s argument concerning the ALJ’s failure
to assess the credibility of his statements regarding his
depression and anxiety symptoms is more persuasive.

“It is the responsibility of the Secretary to determine
issues of credibility and to draw inferences from the record
evidence.”

Ortiz v. Sec'y of Health & Human Servs., 955 F.2d

765, 769 (1st Cir. 1991).

Indeed, in this circuit, the

“credibility determination by the ALJ, who observed the claimant,
evaluated his demeanor, and considered how that testimony fit in
with the rest of the evidence, is entitled to deference,
especially when supported by specific findings.”

Frustaglia v.

Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)
(citing DaRosa v. Secretary of Health and Human Services, 803
F.2d 24, 26 (1st Cir. 1986)).

“[A]n ALJ's 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 to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual's statements and
the reasons for that weight.”

Weaver v. Astrue, No.

10-CV-340-SM, 2011 WL 2580766, at *6 (D.N.H. May 25, 2011), rept.

13

and rec. adopted sub nom. Weaver v. U.S. Soc. Sec. Admin.,
Comm'r, 2011 WL 2579776 (D.N.H. June 27, 2011) (additional
citations omitted) (emphasis in original).

“‘An 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.’”

Waters v. Colvin, No.

13-CV-45-JL, 2014 WL 898639, at *2 (D.N.H. Mar. 7, 2014) (quoting
Kalloch v. Astrue, No. 11–cv–522, 2012 WL 4930986, at *6 (D.N.H.
Sept. 18, 2012), rept. & rec. adopted, 2012 WL 4930983 (D.N.H.
Oct. 15, 2012)) (internal brackets removed).

At the hearing, in response to a question asking whether he
would be able to perform a job where he could be seated for most
of the day, Buccellato responded that he would be unable to do so
because:
my depression, the more time I have that I’m sitting
still or if I’m not keeping my brain occupied as like
watching T.V. or something or if I’m trying to do a
task I have a hard time staying on task to finish it.
That’s why most of all my jobs [prior to the alleged
onset date] were manual labor jobs, you know, physical
labor, you know, was always something to keep moving,
to keep me going and my anxiety just doesn’t, I don’t
like to be in small areas. It doesn’t work well with
me. I don’t, being confined is not something that I’m
good with.

14

Admin. Rec. at 57.

The ALJ summarized the testimony in his

order, noting that Buccellato stated he would be unable to
“perform a seated job . . . due to depression and that his
anxiety increases when he is confined.”

Admin. Rec. at 31.

The

ALJ then stated that “claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms,” but that “claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in this
decision.”

Id. at 31-32.

Following that finding, however, the ALJ did not provide an
explanation as to why he was not crediting Buccellato’s testimony
regarding his inability to perform sedentary work due to the
intensity, persistence, and limiting effects of the symptoms of
depression and anxiety that he claimed.

Thus, while the ALJ

stated that he did not credit Buccellato’s testimony regarding
the severity of limitations imposed by his (non-severe)
depression and anxiety, he “did not identify any specific reasons
for that determination.”

Weaver, 2011 WL 2580766, at *7.

Indeed, it does not appear from the record that the ALJ conducted
an evaluation of the “intensity, persistence and limiting
effects” of Buccellato’s symptoms arising from his mental
impairment “to determine the extent to which the symptoms limit

15

[his] ability to do basic work activities.”
374184, at *2 (Jul. 2, 1996).

SSR 96–8P, 1996 WL

The regulations, however, require

that an RFC “consider all . . . medically determinable
impairments . . . including your medically determinable
impairments that are not ‘severe.’”

20 C.F.R. §404.1545; see

also 20 C.F.R. § 416.945; SSR 96–8P, 1996 WL 374184, at *5 (Jul.
2, 1996) (“In assessing RFC, the adjudicator must consider
limitations and restrictions imposed by all of an individual's
impairments, even those that are not ‘severe.’

While a ‘not

severe’ impairment(s) standing alone may not significantly limit
an individual's ability to do basic work activities, it may —
when considered with limitations or restrictions due to other
impairments — be critical to the outcome of a claim.”)

The ALJ did generally note that Buccellato’s urine test had
indicated marijuana and methadone use, and that “[s]uch evidence
of drug abuse tends to reduce the credibility of the claimant’s
testimony in general.”

Admin. Rec. at 32.

But, assessing

Buccellato’s credibility generally is not enough to satisfy
Social Security Ruling 96-7p’s requirements.

A greater degree of

specificity is required, including a determination as to whether
the objective medical evidence supports claimant’s testimony,
and, if not, “a finding on the credibility of the individual's

16

statements based on a consideration of the entire case record.”
SSR 96–7p, 1996 WL 374186, at *2 (S.S.A. 1996)

The record’s lack of explanation for the ALJ’s credibility
assessment regarding claimant’s mental health symptoms is a
thorny problem because those purported symptoms directly bear on
Buccellato’s capability to perform sedentary work.

It may very

well be that evidence in the record does substantially support
the ALJ’s conclusion that Buccellato’s testimony regarding the
extent to which his symptoms limit his capacity to work is not
credible.

However, “the ALJ's analysis falls well short of being

sufficiently specific to make clear to [Buccellato] and to this
court the weight the ALJ gave to [Buccellato]'s statements and
the reasons for that weight.”

Kalloch, 2012 WL 4930986, at *9

(quotation omitted) (internal brackets omitted).

The

Commissioner’s arguments to the contrary notwithstanding, there
is little choice here but to remand for the required explanation
of the ALJ’s credibility determination.

Conclusion
For the foregoing reasons as well as those set forth in the
claimant’s legal memorandum, claimant’s motion to reverse the
decision of the Acting Commissioner (document no. 12) is granted
to the extent he seeks a remand for further proceedings.

17

The

Acting Commissioner’s motion to affirm her decision (document no.
14) is denied.

Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated June 26, 2013, is vacated and this
matter is hereby remanded 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
United States District Judge
March 30, 2016
cc:

Laurie S. Young, Esq.
D. Lance Tillinghast, Esq.
Robert J. Rabuck, AUSA

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