Chambers v. US Social Security Administration, Acting Commissioner
Filing
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//ORDER granting 7 Motion to Reverse Decision of Commissioner; denying 10 Motion to Affirm Decision of Commissioner. The case is remanded to the SSA for further consideration consistent with this Order. 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
Kathleen Chambers
v.
Civil No. 15-cv-150-JL
Opinion No. 2016 DNH 028
Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Kathleen Chambers appeals the Social Security
Administration’s (“SSA”) denial of her application for disability
benefits.
An Administrative Law Judge (“ALJ”) found that
Chambers suffered from diabetes, depression, anxiety, and left
shoulder capsulitis.
The ALJ nevertheless found that Chambers
was not disabled within the meaning of the Social Security Act
because she has sufficient residual functional capacity (“RFC”)
to work at jobs that exist in significant numbers in the national
economy.
See 42 U.S.C. § 423(d)(2)(A).
The SSA Appeals Council
subsequently denied Chambers’s request for review of the ALJ’s
decision, rendering the ALJ’s decision final.
Chambers timely
appealed to this court, pursuant to 42 U.S.C. § 405(g).
In due
course, Chambers moved to reverse the SSA’s decision and the
SSA’s Acting Commissioner moved to affirm the denial of benefits.
Chambers asserts several arguments in support of her motion.
First, she claims that the ALJ failed to give proper weight to
various medical opinions, including that of her long-time
treating physician.
Next, she argues that the ALJ improperly
disregarded a statement submitted by a former employer.
Chambers
further argues that the ALJ erred in concluding that the severity
of her symptoms was not fully substantiated.
In addition,
Chambers asserts that the ALJ erred in constructing an RFC that
was not supported by medical evidence.
Finally, Chambers claims
that the ALJ improperly relied on an incomplete hypothetical
posed to the vocational expert.
After review of the pending motions, the parties’ joint
statement of material facts and the administrative record, the
court grants Chambers’s motion, denies the Acting Commissioner’s
motion and remands the case to the SSA.
I.
Standard of Review
The court’s review of the SSA’s final decision “is limited
to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.”
Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
The
ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted).
less evidence than a preponderance but “more than a mere
2
This is
scintilla.”
(1966).
Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence.
Consolo, 383 U.S. at 620.
Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable.
Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987).
Background1
II.
In analyzing Chambers's benefit application, the ALJ invoked
the required five-step process.
See 20 C.F.R. § 416.920.
First,
he concluded that Chambers had not engaged in substantial work
activity after the alleged onset of her disability on July 18,
2012.
Next, the ALJ determined that Chambers suffered from
several severe impairments: diabetes, depression, anxiety and
adhesive capsulitis of the left shoulder.
§ 416.1920(c).
See 20 C.F.R.
At the third step, the ALJ concluded that
Chambers’s impairments – either individually or collectively –
did not meet or “medically equal” one of the listed impairments
in the Social Security regulations.
1
See 20 C.F.R. §§ 416.920(d),
The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (doc. no. 11) is incorporated
by reference. See L.R. 9.1(d).
3
416.925, & 416.926.
The ALJ next found that Chambers had the RFC
to perform light, unskilled work, with the modification that she
must avoid climbing ladders, ropes, and scaffolds; that she can
only occasionally climb ramps and stairs, bend, stoop, balance,
kneel, crouch, and crawl; that she can occasionally reach
overhead with her upper left arm; that she should avoid exposure
to vibrations; that she is limited to simple work and that she is
able to maintain attention and concentration for two hour
increments during an eight hour day.
See 20 C.F.R. §§
404.1567(b) and 416.967(b).
After finding at step four that Chambers could not perform
any past relevant work, the ALJ proceeded to step five, at which
the SSA bears the burden of showing that a claimant can perform
other work that exists in the national economy.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
Freeman v.
Here, the ALJ,
relying on Chambers’s testimony and medical records, and the
testimony of a vocational expert, concluded that Chambers could
perform jobs which exist in the regional and national economy,
such as cashier, fast food worker, and price marker.
As
significant here, however, the vocational expert testified, in
response to a hypothetical posed by the ALJ, that absence from
work three or more times per month and a requirement of multiple
10-15 minute breaks would be limitations that would prohibit all
4
work.
Ultimately, the ALJ found Chambers not disabled within the
meaning of the Social Security Act.
III.
A.
Analysis
Weight given to treating physician's opinion
Chambers’s treating endocrinologist, Dr. Beisswenger,2
completed an RFC questionnaire.
He noted Chambers’s diabetes
diagnosis, as well as fatigue and hyper/hypoglycemic attacks.
He
also observed that Chambers suffered from depression and anxiety,
and that her symptoms would interfere with the attention and
concentration necessary to perform simple work tasks
“frequently,” that is, roughly one-third to two-thirds of an
eight-hour day.
Ultimately, Dr. Beisswenger concluded that
Chambers should avoid concentrated exposures to environmental
hazards, that her symptoms would produce “good days” and “bad
days,” and that she would likely to be absent from work more than
four days per month as a result of her impairments and treatment.
Chambers argues that the ALJ should have given Dr. Beisswenger’s
opinion more weight.
The court agrees.
A treatment provider’s opinions must be given controlling
weight if the “treating source’s opinion on the issue(s) of the
nature and severity of [the applicant’s] impairment(s) is
2
According to the record Dr. Beisswenger treated Chambers
roughly twice a year for ten years.
5
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record. . . .”
404.1527(c)(2).
20 C.F.R. §
In a similar vein, the longer a treating source
has treated a claimant and the more times the claimant has been
seen by a treating source, the more weight we will be given to
the source's medical opinion.
Id. at § 404.1527(c)(2)(I).
Where
a long-time treating physician has enough information to have
obtained a longitudinal picture of the claimant’s impairment, the
source’s opinion will be given more weight than if it were from a
non-treating source.
Id.
Finally, “[w]hen a treating
physician’s opinion is not entitled to controlling weight, the
ALJ determines the amount of weight based on factors that include
the nature and extent of the physician’s relationship with the
applicant, whether the physician provided evidence in support of
the opinion, whether the opinion is consistent with the record as
a whole, and whether the physician is a specialist in the field.”
Remick v. Astrue, 2011 DNH 176, 25 (citing 20 C.F.R. §
404.1527(d)(1–6)).
The ALJ must give reasons for the weight
given to treating physician's opinions.
Id.
(citing Soto–Cedeño
v. Astrue, 380 Fed. App'x. 1, 4 (1st Cir. 2010)).
Here, the ALJ gave Dr. Beisswenger’s opinion only “little
weight” because, according to the ALJ, his conclusion regarding
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how much time Chambers would miss from work lacked support and
was contradicted by the remainder of the evidence of record.
After reviewing the record, the court finds that, in fact, it is
the ALJ’s conclusion that is unsupported by the record.
To start with, the court notes that the ALJ supported his
conclusion in part by finding that Chambers’s testimony was
inconsistent with Beisswenger’s findings.
However, in so doing,
it appears the ALJ did not consider the record as a whole.
See
Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222
(1st Cir. 1981) (“We must uphold the Secretary’s findings in this
case if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support his
conclusion.”).
In reducing the weight given to Dr. Beisswenger’s opinion,
the ALJ first noted that Chambers only had one diabetes-related
emergency room visit, to which she “did not go willingly.”
From
here, the ALJ stated that Chambers “indicated she prefers to
manage her condition on her own, which suggests that it is not
severe enough to warrant medical attention.”
(emphasis added).
conclusion.
(Admin. R. at 19)
The record simply does not support this
In response to questioning by the ALJ, Chambers
testified that there were indeed other instances of elevated
blood sugar which might have necessitated emergency services that
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she did not pursue.
(Id. at 36).
However, her decision not to
go to the hospital did not involve any “preferences” or lack of
medical need.
Instead, Chambers testified that either she was
unable to drive herself – impliedly due to her condition –
or
she couldn’t afford the ambulance fee for each emergency setting.
(Id. at 36-7).
Moreover, she testified that the stress of the
emergency room actually worsened her condition.
(Id. at 37).
This testimony cannot be squared with the ALJ’s statement that
Chambers’s avoidance of the emergency room is an indication of
the lack of severity of her condition.
Another factor in the ALJ’s consideration of Dr.
Beisswenger’s opinion revolved around Chambers declining to use
an insulin pump, which, the record suggests, “might” have helped
to better regulate her diabetes symptoms.
Once again, however,
the ALJ relied upon a record fact to imply a “suggestion” that
the record does not support.
Specifically, the ALJ found that
Chambers “declined [to] consider the insulin pump, which suggests
that her symptoms are controlled with needle therapy.”
20) (emphasis added).
picture.
(Id. at
But the transcript paints a different
Chambers testified that the possibility of mechanical
failure of the pump caused her stress which would be
counterproductive.
(Id. at 48-9).
There was nothing in her
testimony to suggest that her decision to forego an insulin pump
8
was a reflection of how well her symptoms were controlled.
The
ALJ supported his inference with reference to Chambers’s
statement that her doctor told her that “if insulin or needle
therapy was working for me, that would be fine.”
(Id. at 48).
But given the laundry list of Chambers’s diabetes-related
problems filling the record, i.e., evidence that her therapy
wasn’t necessarily “working,” the ALJ’s conclusion improperly
takes her statement out of context.
See Mounce v. Astrue, 2011
DNH 181, 26 (finding error for ALJ to lift phrase “spectacularly
well” from physician’s notes without considering context of
remarks).
Chambers next argues that the ALJ improperly ignored a
letter from her previous employer that would have corroborated
Dr. Beisswenger’s opinion.
In the letter, John Herrick,
President of Excalibur Shelving Systems, reported that Chambers’s
diabetes symptoms caused her to work shorter days than normal at
her box assembly job, as on “many . . . days she would become
dizzy, weak, and unable to continue her day.”
208).
(Admin. R. at
Ultimately, Herrick said in the letter, he had to
terminate Chambers’s employment because she could not be
“consistent and reliable.”
(Id.).
The government does not
explicitly dispute that it was error to ignore Herrick’s letter
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entirely.3
Instead, it argues that the error was harmless
because the ALJ concluded that the objective medical evidence
contradicted Herrick’s (and Chambers’s and Dr. Beisswenger’s)
claim that Chambers could not maintain a schedule.
But where the
ALJ explicitly concluded that “the record does not indicate the
claimant would be unable to maintain a schedule or that her
symptoms regularly interfere with her functioning to such an
extent that she could not present for work on a regular basis”
(AR-19), the court does not consider the error harmless.
See
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (observing that
ALJ’s findings of fact “are not conclusive when derived by
ignoring evidence . . . .”).4
3
Such an argument would have little likelihood of success.
See Phelps v. Astrue, 2011 DNH 107, 21 (noting that an ALJ's
failure to give reasons for disregarding the claimant’s husband’s
testimony was error and proceeding to consider harmlessness).
4
The ALJ also appears to have selectively ignored part of
the opinion of a consultatitve examiner, clinical psychologist
Edouard Carignan, who concluded that Chambers “cannot be relied
upon to maintain attendance and a schedule.” (Admin. R. at 270).
While the ALJ noted this finding, he rejected it because: 1) in
his view, it was based on self-reporting and not clinical
findings; 2) the report did not indicate any difficulty in
concentration during the examination; and 3) Chambers showed up
on time for the examination. The first two conclusions are
belied by the report, in which Dr. Carignan noted the clinical
finding that Chambers scored lower than would be expected on one
test, and became “confused” on another and needed prompting to
get back on task. (Id. at 268). As to the ALJ’s third point, it
appears he extrapolated Chambers appearing as scheduled for her
appointment with Dr. Carignan into a finding that the record
failed to document “difficulty . . . presenting on time for
scheduled appointments.” However, the scheduling issues are
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Against this legal and factual backdrop, the court finds
that the ALJ erred in giving Dr. Beisswenger’s opinion only
“little weight.”
B.
RFC
Dr. Beisswenger did not provide any opinion with respect to
the physical components of Chambers’s RFC, such as lifting,
sitting, standing and walking, instead suggesting that a physical
therapist would be more appropriate to perform that analysis.
The ALJ apparently based the physical component of his RFC
finding on the report of the single decisionmaker (AR-17, 5678).5
A single decisionmaker is an employee of the Social
Security Administration who has no medical credentials.
See
Stratton v. Astrue, 987 F. Supp. 2d 135, 138 n. 2 (D.N.H. 2012)
(citing Goupil v. Barnhart, No. 03–34–P–H, 2003 WL 22466164, at
*2 n. 2 (D. Me. Oct. 31, 2001)).
weight.
That opinion is entitled to no
Id. at 150-51; see also Levesque v. Colvin 2014 DNH 191,
apparent from the Herrick letter, discussed supra, and Dr.
Beisswenger’s opinion. The fact that Chambers showed up as
scheduled for a single appointment is not “such evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted).
5
The ALJ did not specifically indicate the source of his
physical RFC findings. His findings, however, appear to be the
same as those of the single decisionmaker. Moreover, there are
no other sources of a physical RFC in the record.
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2.6
Here, by relying on the single decisionmaker, the ALJ
“‘effectively substituted his own judgment for medical opinion.’”
Larocque v. Colvin, 2015 DNH 102, 15 (quoting Alcantara v.
Astrue, 257 F. App'x 333, 334 (1st Cir. 2007)).
This was error,
for an ALJ “cannot assess the claimant’s RFC himself. . . .”
Levesque, at 2–3.
IV.
Conclusion
For the foregoing reasons, the court finds that the ALJ
improperly weighted the opinion of claimant’s treating physician
and improperly assessed her RFC.
Chambers’s motion to reverse7
is therefore GRANTED and the Commissioner’s motion to affirm8 is
DENIED.
The case is remanded to the SSA for further
consideration consistent with this Order.
The clerk shall enter
judgment accordingly and close the case.
6
In some cases of relatively little physical impairment an
ALJ “permissibly can render a commonsense judgment about
functional capacity even without a physician's assessment.”
Levesque 2014 DNH 191, 3. But that is not the case here (and the
government does not argue otherwise).
7
Doc. no. 7.
8
Doc. no. 10.
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SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: February 16, 2016
cc:
Ruth Dorothea Heintz, Esq.
Terry L. Ollila, AUSA
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