Fisher v. US Social Security Administration, Commissioner

Filing 12

///ORDER granting 6 Motion to Reverse Decision of Commissioner; denying 9 Motion to Affirm Decision of Commissioner. Case is remanded under Sentence Four for further administrative proceedings to address the issues raised in this decision and any other appropriate matters. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Fisher
v.

Civil No. 16-cv-176-JD
Opinion No. 2016 DNH 184

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration

O R D E R
Mark Fisher seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
supplemental security income.

In support, Fisher contends that

the Administrative Law Judge (“ALJ”) erred in finding that he
was not disabled because substantial evidence supports the
issues he raises and that the Acting Commissioner failed to meet
her burden of showing that jobs exist that he could do.

The

Acting Commissioner moves to affirm the decision.
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).
As a preliminary matter, Fisher, who is represented by
counsel, misunderstands the standard of review.

In support of

his motion to reverse the Acting Commissioner’s decision, he
argues that substantial evidence supports the issues he raises
and contends that the ALJ’s findings were, therefore, erroneous.
Even if substantial evidence supports Fisher’s claims of error,
the court will affirm the Acting Commissioner’s decision as long
as substantial evidence in the record also supports the ALJ’s
findings.

See, e.g., Nguyen, 172 F.3d at 35 (“The ALJ’s

findings of fact are conclusive when supported by substantial
evidence . . . .”); Misterka v. Colvin, 2016 WL 5334656, at *6*7 (D. Mass. Sept. 22, 2016) (As long as substantial evidence
supports the ALJ’s finding, “it is not for this court to reweigh the evidence.” [internal quotation marks omitted]).

2

Despite counsel’s mistake, the court will review Fisher’s
claims under the applicable standard of review.
Background
Fisher applied for supplemental security income under Title
XVI on July 8, 2013, alleging disability due to a variety of
impairments, including cirrhosis of the liver.
eight years old when he applied.

He was forty-

He had completed the ninth

grade and had worked as a janitor, a machine operator, and a
security guard.
Fisher was diagnosed with non-alcoholic steatohepatitis
(“NASH”) in 2013 that progressed to cirrhosis of the liver.

He

was hospitalized from June 29 to July 1, 2013, based on his
family’s report that he was confused and talking nonsense.

On

intake, the assessment noted was “delirium prob.
Metabolic/hepatic encephalopathy with hyperammonemia -- ? NASH
vs. Etoh liver ds—His LFT patters w liver ds, but pt. And wife
denies any use of etoh for few years.”
emergency room was negative for alcohol.

The urine test in the
Fisher’s mental status

screening and neurological examinations at the hospital were
normal.

On discharge, he was diagnosed with hepatic

encephalopathy.
Fisher was hospitalized in September of 2013 for
gastrointestinal bleeding.

His neurological and psychiatric
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examinations were normal.

Lactulose, a medication to treat

advanced liver disease, was added to Fisher’s medication
regimen.
Dr. Johnathan Jaffe, a state medical consultant, reviewed
Fisher’s medical records and issued a report on September 30,
2013.

Dr. Jaffe concluded that Fisher could do light work but

would need to avoid concentrated exposure to hazards such as
machinery.
From October 6 to October 8, 2013, Fisher was again
hospitalized because of hepatic encephalopathy.

Fisher’s wife

reported that Fisher had had several episodes of confusion along
with dizziness and had acted as though he were drunk.
urine screen was negative for alcohol.

Fisher’s

On admission, he was

diagnosed with altered mental status that was suspected to be
caused by acute hepatic encephalopathy which was likely because
of inadequate lactulose.
and he improved.

His dose of lactulose was increased,

At a follow up appointment with Dr. Knight,

Fisher reported being tired but denied any neurological or
psychiatric problems.
Fisher was hospitalized again for hepatic encephalopathy
from November 17 to November 18, 2013.

His wife reported that

he had been more spaced out and had had staring episodes, and

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Fisher said that he had been feeling loopy.
neurological examinations were normal.

His psychiatric and

At his follow up

appointment, Fisher’s treating physician, Dr. Eric Knight,
reported that Fisher had acute hepatic encephalopathy due to
liver cirrhosis secondary to NASH.

Fisher said he was back to

normal except for being tired.
Other medical records note liver cirrhosis secondary to
NASH, diabetes, carpal tunnel syndrome, along with other medical
issues.
A hearing before an ALJ was held on December 18, 2014.
Fisher testified about his background and the effects of his
illness and other issues.

A vocational expert testified about

jobs that could be done based on the ALJ’s hypothetical
descriptions of limitations.

The ALJ issued his decision on

January 23, 2015.
The ALJ found that Fisher retained the ability to do work
at the light exertional level with only occasional postural
activities and avoiding ladders, ropes, scaffolds, and hazards.
Based on that residual functional capacity assessment, the ALJ
found that Fisher could work as a price marker, a laundry
classifier/sorter, and a bench assembler.
ALJ found that Fisher was not disabled.

5

For that reason, the

Fisher filed an appeal with the Appeals Council and
submitted an opinion from Dr. Knight.

The Appeals Council

denied review, making the ALJ’s decision the final decision of
the Acting Commissioner.
Discussion
Fisher contends that the ALJ erred in finding that his
impairments do not meet or equal the requirements of the listed
impairment at § 5.05(F)1, erred in failing to give controlling
weight to the opinions of his treating physician, and erred at
step four in finding that he had a residual functional capacity
to work at the light exertional level.

Fisher also contends

that the Acting Commissioner failed to meet her burden at step
five of showing that jobs exist that he could do.

The Acting

Commissioner moves to affirm, arguing that the decision is
supported by substantial evidence.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis.

20 C.F.R. § 416.920.

The claimant bears

the burden through the first four steps of proving that her

The listings are found at 20 C.F.R. Part 404, Subpart P,
Appendix 1.
1

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impairments preclude her from working.2
F.3d 606, 608 (1st Cir. 2001).

Freeman v. Barnhart, 274

At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the
claimant can do.

Heggarty v. Sullivan, 947 F.2d 990, 995 (1st

Cir. 1991).
Although Fisher challenges the Acting Commissioner’s
decision on a variety of grounds, the problems with the step
three finding require remand.

Therefore, the other issues need

not be addressed here.
At step three, the ALJ considered § 5.05, which pertains to
chronic liver disease, along with two other listings.3

The ALJ

found that Fisher did not have an impairment or combination of
impairments that met or medically equaled a listing, including

The first four steps are (1) whether the claimant is engaged
in substantial gainful activity; (2) whether he has a severe
impairment; (3) whether the impairment meets or equals a listed
impairment; and (4) assessing the claimant’s residual functional
capacity and his ability to do his past relevant work. 20
C.F.R. § 416.920(a).
2

An impairment or combination of impairments meets a listed
impairment if they are medically determinable and satisfy all of
the criteria of the listing. 20 C.F.R. § 416.925. An
impairment or combination of impairments medically equals a
listed impairment if, an unlisted impairment or a combination of
unlisted impairments “is at least equal in severity and duration
to the criteria of any listed impairment.” 20 C.F.R.
§ 416.926(a). The claimant bears the burden of showing that his
impairment or combination of impairments meets or equals a
listed impairment. King v. Colvin, 2016 WL 4442787, at *3
(D.N.H. Aug. 23, 2016).
3

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§ 5.05.

Fisher contends that the ALJ’s finding is wrong because

his impairments met the criteria for § 5.50(F).

Fisher also

contends that the ALJ erred at step three because he did not
consider Fisher’s impairment due to bilateral carpal tunnel
syndrome to determine if that impairment medically equaled a
listed impairment.
Chronic liver disease includes hepatic encephalopathy that
results in abnormal behavior, cognitive dysfunction, changes in
mental status, or an altered state of consciousness,
§ 5.05(F)(1), and another condition as described in
§ 5.05(F)(2)or § 5.05(F)(3).

The ALJ found that Fisher did not

meet or equal the criteria for § 5.05, without any
particularized analysis of the record in relation to the
criteria for § 5.05(F).
The parties agree that Fisher has chronic liver disease
with hepatic encephalopathy.

The Acting Commissioner also

agrees that Fisher satisfies § 5.05(F)(3).

The Acting

Commissioner contends, however, that Fisher does not meet the
criteria of § 5.05(F)(1) because the record does not show that
he had “abnormal behavior, cognitive dysfunction, changes in
mental status, or altered state of consciousness (for example,
confusion, delirium, stupor, or coma), present on at least two

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evaluations at least 60 days apart within a consecutive 6–month
period” as required by § 5.05(F)(1).
Fisher argues that he meets the requirements of
§ 5.05(F)(1) because he was hospitalized three times based on
reports that he was experiencing an altered mental state, which
occurred on June 29 to July 1, 2013 (“June treatment”), October
6 to October 8, 2013 (“October treatment”), and November 17 to
November 18, 2013 (“November treatment”).

The Acting

Commissioner contends that those incidents do not meet the
criteria of § 5.05(F)(1) because the June treatment was before
his application date and the October and November treatments are
not sixty days apart and because the medical records do not
include evaluations of an altered mental state.
A.

Application Date

The medical events to support chronic liver disease under
§ 5.05 “must occur within the period we are considering in
connection with your application.”

§ 5.00(B).

The Acting

Commissioner argues that the relevant period for purposes of
medical evidence to support a Title XVI case, like Fisher’s,
begins on the date the claimant files his application.

Fisher

argues that the relevant period includes the twelve months that
precede the application date.

9

The Acting Commissioner relies on the regulatory
restriction as to when benefits can be paid for a claim under
Title XVI.

20 C.F.R. § 416.330 & § 416.501; see also Williams

v. Colvin, 2016 WL 5468336, at *1 (W.D.N.Y. Sept. 28, 2016);
Benson v. Colvin, 2016 WL 4690415, at *3 (W.D. Okla. Sept. 7,
2016); Brown v. Colvin, 2016 WL 4425138, at *6 (D.S.C. Aug. 22,
2016).

Based on that limitation, the Acting Commissioner argues

that the June treatment cannot be considered because it occurred
before the application date of July 8, 2013.
Fisher argues that the June treatment should be considered
for purposes of § 5.05(F)(1) because the Acting Commissioner is
required to collect medical records for twelve months before the
application date and because the ALJ expressly considered those
records.

20 C.F.R. § 416.912(d); see also Halyday v. Colvin,

2013 WL 4678791, at *7 (C.D. Cal. Aug. 30, 2013) (holding that
the Acting Commissioner had “not shown that the plaintiff’s
ineligibility for benefits payments prior to a certain period
necessarily dictates the court’s (or the ALJ’s) ability to
examine medical evidence in the record but predating that
period”).
The ALJ did not provide any analysis of the evidence he
considered for purposes of his step three finding so that it is
unclear whether he considered the June treatment or not.

10

As a

result, the ALJ did not address the issue of the relevant period
for determining whether Fisher met the criteria of § 5.05(F).
Given the import of the issue raised, which could affect other
findings at step three, it is appropriate to allow the Social
Security Administration to develop the record at the
administrative level before the issue is reviewed here.
B.

Evaluation

The Acting Commissioner also argues that even if the June
treatment evidence were not time barred, the records do not show
that Fisher had the required mental abnormalities “present on at
least two evaluations at least 60 days apart within a
consecutive 6–month period.”

§ 5.05(F)(1).

Specifically, the

Acting Commissioner contends that although Fisher’s family
reported when they brought him to the hospital for the June
treatment that he was exhibiting symptoms of an altered mental
state, the record does not show that he exhibited that condition
when evaluated at the hospital.

Instead, Fisher’s examination

was normal.
Fisher argues that his family’s reports document abnormal
behavior, which need not be based on an evaluation.

He also

contends that the doctor diagnosed an altered mental status when
he was admitted for the June treatment and that an abnormal
mental screening test is not required.
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As noted above, the ALJ did not provide any analysis of the
evidence he considered in making his finding at step three.
Consequently, the record does not show if the finding was based
on a lack of an abnormal evaluation.

The meaning of

§ 5.05(F)(1) should be addressed in the first instance by the
Social Security Administration in its administrative
proceedings.

Once that determination is made, the court can

review the decision, if necessary.

As the record and decision

are presented here, there is insufficient information about the
basis of the decision to allow review.
Conclusion
For the foregoing reason, the claimant’s motion to reverse
(document no. 6) is granted.

The Acting Commissioner’s motion

to affirm (document no. 9) is denied.
The case is remanded under Sentence Four for further
administrative proceedings to address the issues raised in this
decision and any other appropriate matters.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
October 18, 2016
cc: Sheila O’Leary Zakre, Esq.
Robert J. Rabuck, Esq.
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