Lennon v. Social Security Administration
Filing
13
///ORDER denying 9 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Donna Lennon
v.
Civil No. 15-cv-014-JD
Opinion No. 2015 DNH 153
Carolyn Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Donna Lennon seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the decision of the Acting Commissioner of the Social
Security Administration, denying her application for social
security disability insurance benefits and supplemental security
income.
In support, Lennon argues that the Administrative Law
Judge (“ALJ”) erred in determining the onset date of her
disability and erred in his residual functional capacity
assessment.
The Acting Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”
Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).
The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence.
scintilla.
§ 405(g).
“Substantial evidence is more than a
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background
Lennon applied for social security benefits in May of 2012,
alleging a disability since May 1, 2006.
She was forty-two
years old in 2006 at the time she alleges she became disabled.
She has a high school education and has worked as a part-time
bookkeeper and secretary.
In 2006, Lennon was treated for hip pain and occasionally
took Vicodin for pain.
A bone scan in August of 2007 showed
areas of arthritis and some degenerative changes in her lower
lumbar spine.
At her yearly examination in November of 2009,
Lennon reported that she was exercising and active, although she
had joint pain that she attributed to arthritis.
Lennon complained of constant chronic joint pain.
A year later,
She was
referred to a pain clinic where she was prescribed Percocet.
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After experiencing chest pains, Lennon was diagnosed with
chronic obstructive pulmonary disease in June of 2011.
A CT
scan of her hip in September of 2011 showed no change since
June.
joints.
Lennon continued to have hip pain and pain in other
She began taking Flurbiprofen as her providers wanted
her to reduce the use of narcotic medication.
In August of 2012, Jonathan Jaffe, M.D., reviewed Lennon’s
records for the initial disability determination.
Dr. Jaffe
found that Lennon’s physical ability was at the light exertional
level with some postural limitations.
In September of 2012, Lennon, who is a smoker, was
diagnosed with emphysema, and she began treatment for emphysema
and depression.
Lennon also reported pain in her hips, hands,
knees, and ankle but also reported that she was not taking
Flurbiprofen.
She was prescribed Cymbalta for depression and
Lorazepam for anxiety.
By April of 2013, Lennon’s depression
and anxiety had improved and were stable.
An administrative hearing was held in August of 2013.
Lennon chose to proceed without an attorney representing her.
Lennon said that she was unable to work because of
osteoarthritis and difficulty with depression and anxiety.
Lennon also noted that she had been injured in a car accident in
1978 or 1979.
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Explaining the reason for her alleged disability, Lennon
said that she could not sit or stand for long periods, that she
ached all of the time, and that her depression was overwhelming
her.
She also said that she lived with her seventeen year old
daughter, was able to drive and shop, and could prepare meals.
A vocational expert testified about jobs Lennon could do.
The ALJ concluded that Lennon had severe impairments due to
osteoarthritis but that her depression and anxiety did not cause
more than minimal limitations.
He found that she retained the
residual functional capacity to do light work with a sit or
stand option, with some postural limitations, and some
limitations on repetitively using her hands.
Based on that
functional capacity, the ALJ found that Lennon was not disabled.
The Appeals Council denied her request for review.
Discussion
Lennon contends that the decision denying her benefits
should be reversed and remanded because the ALJ failed to
properly determine the onset date of her impairments under
Social Security Ruling 83-20.
She also contends that the ALJ
improperly assessed her residual functional capacity by failing
to have her records reviewed by a psychiatrist or psychologist.
The Acting Commissioner moves to affirm on the grounds that
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Lennon misunderstands SSR 83-20, that the record evidence does
not support an onset date of disability before her last insured
date, and that the ALJ properly assessed her depression and
anxiety.
The ALJ follows a five-step sequential analysis for
determining whether a claimant is disabled.
§ 404.1520.
20 C.F.R.
The claimant bears the burden through the first
four steps of proving that her impairments preclude her from
working.
2001).
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.
At the fifth step, the ALJ determines whether work that
the claimant can do, despite her impairments, exists in
significant numbers in the national economy and must produce
substantial evidence to support that finding.
Seavey, 276 F.3d
at 5.
A.
SSR 83-20
SSR 83-20, Titles II and XVI:
Onset of Disability, 1983 WL
31249 (S.S.A. 1983), provides guidance for determining when a
disability began, known as the onset date, particularly if the
evidence of the onset date is ambiguous.
As interpreted in this
district, in a Title II case for disability insurance benefits
“SSR 83-20 ordinarily requires the ALJ to consult a medical
advisor before concluding that a claimant was not disabled as of
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her date last insured.”
Fischer v. Colvin, 2014 WL 5502922, at
*5 (D.N.H. Oct. 30, 2014).
That rule does not apply, however,
when the ALJ has determined that the claimant is not presently
disabled.
Id. at n.15; Wilson v. Colvin, 17 F. Supp. 3d 128,
142-43 (D.N.H. 2014).
In this case, the ALJ found that Lennon had “not been under
a disability, as defined in the Social Security Act, from May 1,
2006, through the date of this decision . . . .”
Because the
ALJ found that Lennon was not presently disabled, there was no
need to find a nonexistent onset date.
3d at 142-43.
See Wilson, 17 F. Supp.
Therefore, SSR 83-20 does not apply to the
circumstances of this case, and the ALJ did not err in failing
to consult a medical advisor to establish an onset date.
B.
Residual Functional Capacity Assessment
Lennon challenges the ALJ’s finding that her residual
functional capacity was not affected by her depression and
anxiety.
She argues that the ALJ was required to obtain the
opinion of a psychiatrist or psychologist to evaluate her mental
functional capacity.
In the absence of an opinion, she
contends, the ALJ’s residual functional capacity assessment is
impermissibly based on his lay opinion.
The Acting Commissioner
argues that the ALJ’s assessment was taken from the treatment
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notes in the medical record and was not an impermissible lay
medical opinion.
In making the residual functional capacity assessment at
Step Four, the ALJ found that Lennon retained the ability to
perform light work except that she required the option to sit or
stand, was only occasionally able to do certain postural and
climbing activities, and had to avoid repetitive motion with her
hands.
The ALJ did not assess Lennon’s claimed impairments due
to depression and anxiety at Step Four because he determined at
Step Two that those impairments did not cause anything more than
minimal limitations.
The ALJ explained that there was no
medical evidence in the record from Lennon’s alleged onset date,
May 1, 2006, through her last insured date, June 30, 2009, that
she had depression or anxiety.1
Further, the ALJ explained, the
recent medical record showed that her depression and anxiety had
improved with medication and counseling and cited record
evidence to support that finding.2
To be
insurance
show that
42 U.S.C.
1
eligible for benefits under Title II, disability
benefits, a claimant who is no longer insured must
she was disabled on or before her last insured date.
§ 423(c).
Eligibility for supplemental security income under Title XVI
is not dependent on the claimant’s insured status. See Moreau
v. Colvin, 2015 WL 1723230, at *2 (D. Me. Apr. 14, 2015).
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2
As a lay person, an ALJ is “not qualified to interpret raw
medical data in functional terms.”
Nguyen, 172 F.3d at 35;
Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17
(1st Cir. 1996).
For that reason, an expert generally is
necessary to provide a functional capacity assessment based on
medical data.
Manso-Pizarro, 76 F.3d at 17.
Nevertheless, an
ALJ can “render[] common-sense judgments about functional
capacity based on medical findings, as long as the [ALJ] does
not overstep the bounds of a lay person’s competence and render
a medical judgment.”
Gordils v. Sec’y of Health & Human Servs.,
921 F.2d 327, 329 (1st Cir. 1990); accord Couture v. Colvin,
2015 WL 3905273, at *5 (D.N.H. June 25, 2015); Pelletier v.
Colvin, 2015 WL 247711, at *17 (D.R.I. Jan. 20, 2015).
In this case, the ALJ relied on the treatment notes of Dr.
Shawn Sutton, Lennon’s primary care physician, and Lennon’s own
reports to determine that Lennon’s depression and anxiety were
not severe.3
Dr. Sutton’s notes state that Lennon had begun
Lennon mistakenly charges that the ALJ relied on
“nonexistent records” to evaluate the degree of her
psychological impairment. The records the ALJ cites in his
decision are part of the administrative record. To the extent
Lennon faults the ALJ for not having treatment records from her
counselor, Priscilla Thompson, her criticism is misplaced. The
burden was on Lennon to prove that she was disabled by providing
evidence of her disability. Further, the ALJ wrote to Thompson
requesting her treatment records for Lennon, but Thompson did
not reply.
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3
counseling with Priscilla Thompson and was taking Cymbalta for
depression and taking Lorazepam as needed for anxiety.
Six
weeks later, in November of 2012, Dr. Sutton’s notes show that
Lennon was much improved with medication although she was having
sadness about her mother’s death as the holidays approached.
The notes state that Lennon’s report was consistent with the
update from her counselor, Thompson.
In April of 2013, Lennon
again reported that she was much better due to Cymbalta.
The ALJ did not interpret raw medical data to assess
Lennon’s residual functional capacity.
Instead, the ALJ relied
on Lennon’s own report of her status to her primary care
physician, which was confirmed by her counselor’s report to her
physician, to find that any impairment due to depression or
anxiety was not severe.
As such, the ALJ did not find that
Lennon had a severe psychological impairment and then attempt to
assess her psychological date in functional terms without an
expert’s opinion.
Because the record supports the ALJ’s
finding, it is affirmed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 9) is denied.
The Acting
Commissioner’s motion to affirm (document no. 10) is granted.
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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
August 4, 2015
cc:
Judith E. Gola, Esq.
T. David Plourde, Esq.
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