Black v. US Social Security Administration, Acting Commissioner

Filing 15

///ORDER denying 9 Motion to Reverse Decision of Commissioner; granting 12 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
Sarah Black
v.

Civil No. 17-cv-350-JD
Opinion No. 2018 DNH 087

Acting Commissioner,
Social Security Administration

O R D E R
Sarah Black seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the decision of the Acting Commissioner of Social
Security, denying her application for disability benefits under
Title II of the Social Security Act.

Black moves to reverse,

contending that the Administrative Law Judge (“ALJ”) erred in
finding that she was not disabled.

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.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).

Substantial evidence is “more than a scintilla

of evidence” but less than a preponderance of the evidence.
Purdy v. Berryhill, --- F.3d ---, 2018 WL 1601791, at *3 (1st
Cir. Apr. 3, 2018) (internal quotation marks omitted).

When

the record could support differing conclusions, the court must
uphold the ALJ’s findings “if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support his conclusion.”

Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal
quotation marks omitted); accord Purdy, 2018 WL 1601791, at *4.
Background
Black seeks disability insurance benefits, alleging an
onset of disability as of January 1, 2011, due to back pain.
She was thirty-six years old at that time.

Her last insured

date was December 31, 2011.
On January 3, 2011, Black saw Gayle Sutton, A.P.R.N.,
following an incident two days before when she bent over and
because of back pain could not then straighten up.

She reported

that she could only move slowly and that her back felt locked.
Dr. Peter Dirksmeier performed a lumbar fusion surgery at the
L4-5 and L5-S1 levels of Black’s spine on November 9, 2011.
Black reported to Dr. Dirksmeier on February 3, 2012, that
she was doing well, felt the best she had in a long time, and

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had been doing physical therapy which was going well.

Dr.

Dirksmeier’s notes show that he advised Black to wean off of
narcotic medications, that her fusion would be complete in the
next three months, and that she should continue with physical
therapy to be followed by an independent exercise program.
In April of 2012, Black saw Dr. James Hay and reported that
her TENS unit was helping so that her pain was at zero out of
ten.

Dr. Hay wrote that Black’s back pain was entirely

controlled by the TENS unit.

Black saw Dr. Dirksmeier in May

and reported that she had no pain and was at a higher level of
activity than even before her back incident.

Dr. Dirksmeier

cleared Black for increased activities and told her that she
would need exercise, weight loss, conditioning, and
strengthening to prevent issues in the future.
Black saw Tara Fraser, P.A.C., in May of 2012, and reported
that she was doing well on her antidepressant medication and
that she had no pain.

On examination, Fraser found that Black

had no acute distress, normal alignment and mobility, intact
neurological responses, and a good affect and mood.
In November of 2012, Black saw Dr. Dirksmeier after a
session with her chiropractor.

Black said that she had been

doing well until the chiropractor performed an “adjustment” on
her back that caused her to have sciatica down the right side.
She said that her pain was seven out of ten.
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On examination, Dr. Dirksmeier found that Black was not in
acute distress and all tests and observations showed normal
results.

Dr. Dirksmeier discussed with Black the effects of her

obesity and deconditioning on her mechanical low back pain.

Dr.

Dirksmeier noted that exercise was the key to improving Black’s
symptoms.

Dr. Dirksmeier also ordered physical therapy.

State agency physician Dr. Natacha Sochat reviewed Black’s
record in June of 2014.

Dr. Sochat found that Black had a

primary severe impairment of degenerative disc disease and a
secondary impairment of obesity.

Dr. Sochat also found that

Black could lift and carry ten pounds, stand and walk for a
total of four hours, sit for six hours, and occasionally do
postural activities.

In addition, Dr. Sochat noted that Black

had had increased functional limitations right after her back
surgery.
In October of 2015, Loretta Shugre, M.S.W., LIC.S.W., wrote
a letter stating that Black appeared to be capable of working.
Shugre also wrote that Black was then working part time at a
school doing recess duty and substitute teaching.
In March of 2016, Black had a consultative visit with Dr.
Frank Graf to review her medical history and do an orthopedic
examination.

Dr. Graf found that Black had continuing

functional restrictions because of back pain after her surgery
in November of 2011, although she had had an initial improvement
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in her symptoms.

Based on his review, Dr. Graf completed a

“Physical Impairment Medical Source Statement” form in which he
indicated that Black could walk for three city blocks without
rest or pain, could sit for less than two hours in a work day,
stand and walk for less than two hours in a work day, would need
to be able to shift positions, would need unscheduled breaks
every thirty minutes, could occasionally lift ten pounds, and
was limited in postural activities.

Dr. Graf also indicated

that Black did not use a cane but was restricted in the use of
her hands so that she could do fine manipulations for 75% of a
work day.
A hearing was held on Black’s application.

Dr. Rita Clark

testified as a psychiatric expert and stated that Black had no
significant limitations due to psychiatric issues.
testified.

Black also

A vocational expert testified about available jobs

that Black could do despite her impairments.
In his decision, the ALJ found that Black had a severe
impairment of degenerative disc disease of the lumbar spine
status post lumbar fusion surgery.

In light of that impairment,

the ALJ found that Black had a residual function capacity to do
sedentary work, limited to lifting and carrying no more than ten
pounds, sitting for up to six hours and standing and walking for
up to four hours.

The ALJ also required that Black have the

option to alternate positions during the workday, be limited to
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no more than frequent fingering and handling, occasional
postural activities, and simple and routine tasks.

The ALJ

found that Black could not return to her previous work but that
there were other jobs she could do.

As a result, the ALJ found

that Black was not disabled for the requisite twelve-month
period beginning before her last insured date.

The Appeals

Council denied review, making the ALJ’s decision the final
decision of the Acting Commissioner.
Discussion
Black moves to reverse the Acting Commissioner’s decision
on the grounds that the ALJ failed to consider the combined
effects of her impairments, erred in weighing the medical
opinion evidence, and erred assessing Black’s testimony about
her symptoms and limitations.

The Acting Commissioner moves to

affirm, arguing that the ALJ properly considered Black’s
impairments, the medical evidence, and Black’s testimony.
Disability for purposes of disability insurance benefits
means “inability 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
last or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(c)(1)(A).

A claimant

must also meet the insured status requirements to receive

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benefits.

§ 423(a)(1)(A).

In this case, the ALJ determined,

and Black does not dispute, that she met the insured status
requirements through December 31, 2011, which is her last
insured date.

Therefore, Black must show that she was disabled

before December 31, 2011. And that her disability continued for
twelve months.

Fisher v. Colvin, 831 F.3d 31, 32-33 (1st Cir.

2016); Drew v. Colvin, --- F. Supp. 3d ---, 2018 WL 889226, at
*2 (D. Mass. Feb. 14, 2018); Squeglia v. Berryhill, 2017 WL
773528, at *3 (D.N.H. Feb. 28, 2017).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis.
Purdy, 2018 WL 1601791, at *1-*2.

20 C.F.R. § 404.1520;

The claimant bears the burden

through the first four steps of proving that her impairments
preclude her from working.
608 (1st Cir. 2001).

Freeman v. Barnhart, 274 F.3d 606,

At the fifth step, the Acting Commissioner

has the burden of showing “evidence of specific jobs in the
national economy that the applicant can still perform.”

Purdy,

2018 WL 1601791, at *2.
A.

Medical Opinion Evidence
Black argues that the ALJ erred in giving more weight to

Dr. Sochat’s opinion than to Dr. Graf’s opinion.

In support,

Black argues that because Dr. Graf examined her, in addition to
reviewing her records, the ALJ was required to give his opinion

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more weight.

Black also argues that Dr. Sochat’s opinion is

unsupported because she did not review Black’s most recent
medical records and did not discuss some of the records that
were available to her.
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record.

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C.F.R. § 404.1527(b).1 “Medical opinions are statements from
acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.”

§ 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that support or detract
from the opinion.

§ 404.1527(c).

One factor to be considered

is the medical source’s “understanding of [social security]
disability programs and their evidentiary requirements.”
§ 404.1527(c)(6).

Because Black’s claim was filed before March 27, 2017, the
new rule for considering medical opinions does not apply. See
20 C.F.R. § 404.1520c; Purdy, 2018 WL 1601791, at *4, n.8
(discussing § 416.920c under Title XVI).
1

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A “treating source” is a physician or other acceptable
medical source who has provided “medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with
[the claimant].”

§ 404.1527(a)(2).

An “ongoing treatment

relationship” exists “when the medical evidence establishes that
[the claimant] see[s], or ha[s] seen the [physician] with a
frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for your medical
condition(s).”

Id.

If a treating physician’s opinion is well-

supported by objective medical evidence and not inconsistent
with other medical evidence in the record, the ALJ will give the
opinion controlling weight.

Id.

Neither Dr. Sochat nor Dr. Graf are Black’s treating
physician.

Dr. Sochat is a state agency physician, whose

understanding of the disability program and the evidentiary
requirements of the program entitles her opinion to more weight.
Dr. Graf is an orthopedic specialist who was hired by Black’s
attorney to provide an opinion in support of her application for
benefits.

As such, both doctors have credentials to support

their opinions.
1.

Dr. Sochat

The ALJ gave great weight to Dr. Sochat’s opinion that
Black was limited to sedentary level work with an additional

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limitation to only occasional postural movements.

The ALJ

credited Dr. Sochat’s knowledge of the disability program and
noted that she had reviewed relevant medical evidence, including
medical evidence for six months after Black’s date last insured.
The ALJ did add a limitation to his residual functional capacity
to allow positional change, which Dr. Sochat did not include, to
address Black’s testimony.
Black argues that the ALJ erred in giving Dr. Sochat’s
opinion great weight because she was a non-treating source and
because she did not review or discuss all of Black’s records.2
As noted above, opinions provided by state agency physicians are
entitled to weight based on their understanding of the
disability program.

Black cites no requirement that a medical

source discuss every medical record that she reviewed, nor does
she explain why medical records for treatment long after her
date last insured are relevant to the disability determination.
Therefore, Black has not shown that the ALJ erred in giving Dr.
Sochat’s opinion great weight.

To the extent Black argues that Dr. Sochat found she was
disabled post surgery and before her date last insured, Dr.
Sochat’s opinion does not support that conclusion. Further,
even if that were the case, the medical evidence after the date
last insured shows that Black recovered quickly so that any
disability caused by the surgery was of short duration and did
not extend for the required twelve-month period.
2

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2.

Dr. Graf

The ALJ gave less weight to Dr. Graf’s opinion because his
examination and review were done more than four years after
Black’s last insured date and his opinion was not consistent
with Black’s record during the relevant period.

Specifically,

the ALJ noted that while Dr. Graf found that Black’s surgery
provided only partial relief, the record shows that the surgery
did relieve her pain and that the pain did not return until
November of 2012, eleven months after her last insured date, as
the result of a chiropractic adjustment.

To the extent Black

experienced pain that began after her last insured date, any
disability related to that pain did not occur during the
relevant period and cannot be considered to support her claim.
Therefore, Black has not shown that the ALJ improperly
discounted Dr. Graf’s opinion.
B.

Combined Effects of Impairments
Black faults the ALJ for failing to find additional

limitations based on impairments that the ALJ found were not
severe.

In support, she again contends that the ALJ should have

adopted Dr. Graf’s opinions and rejected Dr. Sochat’s opinions.
As is discussed above, the ALJ properly weighed the medical
opinion evidence.

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To the extent Black intended to challenge the ALJ’s finding
at Step Two, that theory lacks merit.

The ALJ continued on

through the five steps of the sequential analysis and did
consider Black’s other impairments.
Step Two was harmless.

Therefore, any error at

Garneau v. Berryhill, 2017 WL 4512160,

at *7 (D.N.H. Oct. 10, 2017).
C.

Black’s Testimony
Black contends that the ALJ improperly evaluated her

testimony in a manner that was not consistent with Social
Security Ruling (“SSR”) 16-3p.

Specifically, Black points to

the ALJ’s finding that “‘intensity, persistence and limiting
effects of [her] symptoms are not entirely consistent with the
medical evidence and other evidence in the record for the
reasons explained in this decision.”
ALJ’s decision at 17).

Doc. 9-1, at 11 (quoting

She contends that the ALJ’s statement

violates the requirement in SSR 16-3p that the Acting
Commissioner “‘will not disregard an individual’s statements
about the intensity, persistence, and limiting effects of
symptoms solely because the objective medical evidence does not
substantiate the degree of impairment-related symptoms alleged
by the individual.’”

Doc. 9-1, at 11 (quoting SSR 16-3p).

Taking the ALJ’s statement in context, he explains that
Black’s testimony about her current condition is inconsistent

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with the medical evidence and her own testimony about her
condition during the relevant period before December 31, 2011.
The ALJ did not disregard Black’s statements but instead
explained why the evidence showed she was not as limited during
the relevant period.

The ALJ cites both the objective medical

evidence and Black’s statements to Dr. Dirksmeier and Dr. Hay.
As such, Black has not shown that the ALJ failed to comply with
the requirements of SSR 16-3p.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 9) is denied.

The Acting Commissioner’s motion to

affirm (document no. 12) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 30, 2018
cc:

D. Lance Tillinghast, Esq.
Terry L. Ollila, Esq.

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