Perry v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER granting, to the extent claimant seeks remand for further proceedings, 9 Motion to Reverse Decision of Commissioner; and denying 11 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sheila Ann Perry,
Claimant
v.
Case No. 14-cv-390-SM
Opinion No. 2015 DNH 117
Carolyn W. Colvin,
Acting Commissioner of Social Security,
Respondent
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Sheila Ann Perry, moves to reverse (or remand for additional
hearing) the Acting Commissioner’s decision denying her
applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under the Social Security
Act, 42 U.S.C. §§ 423 and 1381-1383c (the “Act”).
The Acting
Commissioner objects and moves for an order affirming her
decision.
For the reasons discussed below, claimant’s motion is
granted, and the Acting Commissioner’s motion is denied.
Factual Background
I.
Procedural History.
In December of 2011, claimant filed applications for DIB and
SSI benefits, alleging that she had been unable to work since May
15, 2000, due to anxiety, depression, and a back condition.
Those applications were denied and claimant requested a hearing
before an Administrative Law Judge (“ALJ”).
In April of 2013, claimant, her attorney, her boyfriend, and
a vocational expert appeared before an ALJ, who considered
claimant’s applications de novo.
Later that month, the ALJ
issued her written decision, concluding that claimant was not
disabled, as that term is defined in the Act, at any time prior
to the date of her decision.
The Appeals Council denied
claimant’s request for review, so the ALJ’s denial of her
applications became the 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.
Claimant then filed a
“Motion for Order Reversing Decision of the Commissioner”
(document no. 9).
In response, the Acting Commissioner filed a
“Motion for Order Affirming the Decision of the Commissioner”
(document no. 11).
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
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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
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).
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II.
The Parties’ Respective Burdens.
An individual seeking DIB and/or SSI benefits is disabled
under the Act if 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
(1st Cir. 1991).
To satisfy that burden, the claimant must
prove, by a preponderance of the evidence, that her impairment
prevents her from performing her 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 her previous work,
the burden shifts to the Commissioner to show that there are
other jobs in the national economy that she can perform, in light
of her 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).
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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 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. § 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 Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
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step 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, she first determined that
claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: May 15, 2000.
at 23.
Admin. Rec.
Next, she concluded that claimant suffers from several
“severe” impairments: “a pain disorder with chronic low back
pain, an anxiety disorder and a mood disorder.”
Id.
Nevertheless, the ALJ determined that those impairments,
regardless of whether they were considered alone or in
combination, did not meet or medically equal any of the
impairments listed in Part 404, Subpart P, Appendix 1.
Rec. at 25.
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.
She noted, however, that claimant:
is unable to climb ladders, ropes or scaffolds. She
needs to avoid exposure to hazards. She is limited to
performing uncomplicated tasks (defined as tasks that
can be learned in 30 days or less) that are done in a
solitary manner, but she can engage in incidental
contact with the general public and she can manage
brief and superficial interaction with co-workers. She
can collaborate with supervisors on routine matters.
In this context, she can concentrate and persist on
tasks for 2 hour blocks of time throughout a normal
workday and workweek.
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Admin. Rec. at 26-27.
In light of those restrictions, the ALJ
concluded that claimant was not capable of performing her past
relevant work as a machine operator.
Id. at 29.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform.
She presented
a hypothetical scenario to the vocational expert, involving a
worker with the above-listed limitations, and asked whether there
are jobs in the national economy that such an individual can
perform.
The vocational expert opined that there are such jobs,
and gave several representative examples.
Based upon that
testimony, the ALJ determined that, notwithstanding claimant’s
exertional and non-exertional limitations, she “is capable of
making a successful adjustment to other work that exists in
significant numbers in the national economy.”
Id. at 30.
Consequently, the ALJ concluded that claimant was not “disabled,”
as that term is defined in the Act, through the date of her
decision (April 26, 2013).
Discussion
Claimant challenges the ALJ’s decision on four grounds,
asserting that she erred: (1) by affording inadequate weight to
the opinion of claimant’s treating psychiatrist; (2) by
improperly calculating claimant’s residual functional capacity;
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(3) by improperly evaluating claimant’s subjective complaints of
pain and credibility; and (4) by failing to satisfy her burden at
step five of the sequential analysis.
While claimant has
identified several weaknesses in the ALJ’s decision (which the
Commissioner characterizes as “harmless errors”), the court
focuses on the ALJ’s decision to discount the professional
opinions of claimant’s treating psychiatrist, Dr. Blencowe.
Because Dr. Blencowe had an ongoing treatment relationship
with claimant, her medical opinions are entitled to controlling
weight, provided they are “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and [they are] not
inconsistent with the other substantial evidence in [claimant’s]
record.”
20 C.F.R. § 404.1527(c)(2).
Those regulations go on to
provide that:
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(c)(2) (emphasis supplied).
See also Social
Security Ruling, Policy Interpretation Ruling Titles II and XVI:
Giving Controlling Weight to Treating Source Medical Opinions,
SSR 96-2p, 1996 WL 374188 (July 2, 1996) (when the ALJ renders an
adverse disability decision, his or her notice of decision “must
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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 the
weight.”) (emphasis supplied).
Here, the ALJ declined to afford controlling weight to Dr.
Blencowe’s opinions.1
Her stated reasons for doing so -
inconsistencies in Dr. Blencowe’s report - are, however,
insufficient.
As the Acting Commissioner herself acknowledges,
“Plaintiff contends that the inconsistencies the ALJ referenced
[in Dr. Blencowe’s report] were not inconsistencies at all, and
the Commissioner is inclined to agree.”
memorandum (document no. 11-1) at 3.
Commissioner’s
But, says the Commissioner:
The ALJ would have done better to highlight that Dr.
Blencowe found that Plaintiff had an “unlimited or very
good” ability to “maintain regular attendance and be
punctual within customary tolerances,” while
simultaneously noting that her impairments or treatment
would cause her to miss more than four days of work per
month. Because the opinion was actually internally
1
The ALJ also discounted the opinions of Janice Long, a
licensed clinical social worker, and Dr. Janet Levinson, a
consultative psychologist - both of whom examined and/or treated
claimant. See Admin. Rec. at 28-29.
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inconsistent, the ALJ is guilty only of reaching the
right result by the wrong route.
Id.
The court disagrees.
That claimant has the ability to be punctual and regularly
show up for work does not address interruptions to her work
schedule caused by either the symptoms of her impairments or her
need to obtain medical and/or psychiatric treatment.
Indeed,
while Dr. Blencowe opined that claimant had the ability to be
punctual, she also stated that, once at work, claimant would be
unable to “complete a normal workday and workweek without
interruptions from psychologically based symptoms.”
at 406.
Admin. Rec.
Without a more thorough discussion from the ALJ and
detailed explanation of her reasoning, it is difficult to
understand how Dr. Blencowe’s opinions can be characterized as
internally inconsistent.
As additional support for her decision to discount Dr.
Blencowe’s opinions, the ALJ stated that they were “inconsistent
with her clinical assessment in February 2013 when she observed
normal thought processes, normal speech, good memory and good
attention and concentration.”
Id. at 28.
Again, however, those
observations by Dr. Blencowe are not necessarily inconsistent
with her subsequent opinions about claimant’s ability to perform
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work-related tasks.
Dr. Blencowe’s opinions focused on
claimant’s allegedly disabling anxiety and motivation issues (as
well as symptoms resulting from those impairments) which, at
least in Dr. Blencowe’s opinion, “interfere with her being able
to process and focus on information” and, in turn, “make her
extremely anxious and tearful.”
Id. at 407.
Those allegedly
disabling impairments and symptoms are not inconsistent with
normal speech, good memory, and good attention.
Nevertheless, the Commissioner urges the court to affirm the
ALJ’s decision, arguing that a careful review of the record
reveals that there are other inconsistencies in Dr. Blencowe’s
opinions upon which the ALJ could have properly relied in
deciding to discount her opinions.
In essence, the Commissioner
asserts that the ALJ’s errors were “harmless.”
But, as this
court has previously recognized, it “cannot uphold the ALJ’s
decision based on rationales unarticulated in the record.”
Laplume v. Astrue, 2009 WL 2242680 at *6 n.20, 2009 DNH 112 (July
24, 2009).
It is the role of the ALJ, not the court, to identify
record support for her decision to discount the opinions of
claimant’s treating source, Dr. Blencowe.
In a substantially
similar situation, this court (Laplante, J.) observed:
In the motion before this court, counsel for the
Commissioner ably posits numerous reasons “[l]ending
support to the ALJ’s disregard of Dr. Southworth’s
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limitational assessments.” It is the responsibility of
the ALJ to undertake that analysis in the first
instance, not the court. The court recognizes that it
is possible that on remand, the Commissioner may once
again conclude that Dube was not disabled during the
relevant time period. If he reaches such a conclusion,
however, he must do so in a manner that demonstrates
that all the relevant evidence in the record was
considered in accordance with applicable legal
standards.
Dube v. Astrue, 781 F. Supp. 2d 27, 36 (D.N.H. 2011) (citations
omitted).
See also Fortin v. Astrue, 2011 WL 2295171, *8 (D.N.H.
2011) (“[I]t is not the role of the Commissioner or the court to
fashion a rationale under which the ALJ could have sustainably
rejected [claimant’s treating source’s] opinion.”) (citations
omitted).
See generally Securities and Exchange Commission v.
Chenery Corp., 332 U.S. 194, 196 (1947) (articulating “a simple
but fundamental rule of administrative law,” which provides that
“a reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked
by the agency.
If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper
basis.
To do so would propel the court into the domain which
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Congress has set aside exclusively for the administrative
agency.”).2
Stated simply, the ALJ did not adequately justify her
decision to discount the opinions of claimant’s treating source,
Dr. Blencowe.
The ALJ did not give "good reasons" for
disregarding the opinions of a treating source as required by
regulation.
Accordingly, this matter must be remanded.
The ALJ
may reconsider the weight that should properly be ascribed to
those opinions, under applicable regulations.
Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 9) is granted to the
extent she seeks a remand for further proceedings.
The Acting
Commissioner’s motion to affirm her decision (document no. 11) is
denied.
2
As several courts have recognized, “an exception to the
Chenery rule exists when a remand ‘will amount to no more than an
empty exercise’ because, for example, ‘application of the correct
legal standard could lead to only one conclusion.’” Clark v.
Astrue, 2010 WL 2924237, at *4 (D. Me. 2010) (quoting Ward v.
Commissioner of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000)).
Here, however, the outcome on remand is far from clear. Should
the ALJ identify and rely upon supportable reasons for
discounting Dr. Blencowe’s opinions, there is certainly
substantial evidence in the record to support the conclusion that
claimant is not disabled. If, however, Dr. Blencowe’s opinions
are entitled to controlling weight, it would appear that claimant
is likely disabled.
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Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated April 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
June 9, 2015
cc:
Raymond J. Kelly, Esq.
Michael T. McCormack, Esq.
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