Belanger v . SSA CV-01-304-M 06/11/02
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edna M. Belanger,
Claimant
v. Civil N o . 01-304-M
Opinion N o . 2002 DNH 113
Jo Anne B . Barnhart, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Edna Belanger,
moves to reverse the Commissioner’s decision denying her
application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act,
42 U.S.C. § 423 (the
Act). The Commissioner objects and moves for an order affirming
her decision.
Factual Background
I. Procedural History
In August of 1999, claimant filed an application for
disability insurance benefits under Title II of the Act, alleging
that in March of 1998, she became disabled due to pain in her
left shoulder, carpal tunnel syndrome, and adverse side-effects
of her medications. The Social Security Administration denied
her application initially and on reconsideration.
On November 9, 2000, claimant, her attorney, and a
vocational expert appeared before an Administrative Law Judge
(ALJ) who considered her claims de novo. The ALJ issued his
order on January 2 6 , 2001, concluding that, although subject to
some restrictions, claimant was capable of performing a range of
light and sedentary work and was not, therefore, precluded from
performing a significant number of jobs in the national economy.
On June 1 9 , 2001, the Appeals Council denied claimant’s request
for review, thereby rendering the ALJ’s disability determination
the final decision of the Commissioner.
In response, claimant filed this action, asserting that the
ALJ’s decision was not supported by substantial evidence and
seeking a judicial determination that she is disabled within the
meaning of the Act. Claimant then filed a “Motion to Reverse or
Remand the Decision of the Commissioner” (document n o . 8 ) . The
Commissioner objected and filed a “Motion for Order Affirming the
2
Decision of the Commissioner” (document no. 1 0 ) . Those motions
are pending.
II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
statement of stipulated facts which, because it is part of the
court’s record (document n o . 1 1 ) , need not be recounted in this
opinion. Those facts relevant to the disposition of this matter
are discussed as appropriate.
Standard of Review
I. Properly Supported Factual Findings by the ALJ
are Entitled to Deference.
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 of the Commissioner are
conclusive if supported by substantial evidence. See
42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health and
3
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). 1 Moreover,
provided the ALJ’s findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the adverse position.
See Tsarelka v . Secretary of Health and Human Services,
842 F.2d
529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]
conclusion, even if the record arguably could justify a different
conclusion, so long as it is supported by substantial
evidence.”). See also Gwathney v . Chater,
104 F.3d 1043, 1045
(8th Cir. 1997) (The court “must consider both evidence that
supports and evidence that detracts from the [Commissioner’s]
decision, but [the court] may not reverse merely because
substantial evidence exists for the opposite decision.”);
Andrews v . Shalala,
53 F.3d 1035, 1039-40 (9th Cir. 1995) (The
court “must uphold the ALJ’s decision where the evidence is
susceptible to more than one rational interpretation.”).
1
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v . NLRB, 305 U.S. 197, 229
(1938). It is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. See Consolo v .
Federal Maritime Comm’n.,
383 U.S. 607, 620 (1966).
4
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health and Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
(citing Sitar v . Schweiker,
671 F.2d 1 9 , 22 (1st Cir. 1982)). It
is “the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts.” Irlanda Ortiz,
955 F.2d at 769.
Accordingly, the court will give deference to the ALJ’s
credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health and Human Services,
829 F.2d
192, 195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health
and Human Services,
803 F.2d 2 4 , 26 (1st Cir. 1986)).
II. The Parties’ Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or 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 has lasted or can be expected to last for a
5
continuous period of not less than 12 months.” 42 U.S.C.
§ 416(i)(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 and Human Services,
944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, the claimant must prove that her
impairment prevents her from performing her former type of work.
See Gray v . Heckler,
760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v . Secretary of Health and Human Services,
690 F.2d 5 ,
7 (1st Cir. 1982)). Nevertheless, the claimant is not required
to establish a doubt-free claim. The initial burden is satisfied
by the usual civil standard: a “preponderance of the evidence.”
See Paone v . Schweiker,
530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective assertions 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 and Human Services, 797 F.2d 1 9 , 23 (1st Cir. 1986);
6
Goodermote, 690 F.2d at 6. Provided the claimant has shown 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. See Vazquez v . Secretary of Health
and Human Services,
683 F.2d 1 , 2 (1st Cir. 1982). If the
Commissioner shows the existence of other jobs that the claimant
can perform, then the overall burden to demonstrate disability
remains with the claimant. See Hernandez v . Weinberger,
493 F.2d
1120, 1123 (1st Cir. 1974); Benko v . Schweiker,
551 F. Supp. 6 9 8 ,
701 (D.N.H. 1982).
When determining whether a claimant is disabled, the ALJ is
required to make the following five inquiries:
(1) whether the claimant is engaged in substantial
gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed
impairment;
(4) whether the impairment prevents the claimant from
performing past relevant work; and
(5) whether the impairment prevents the claimant from
doing any other work.
7
20 C.F.R. § 404.1520. See also
20 C.F.R. § 416.920. Ultimately,
a claimant is disabled only if her:
physical or mental impairment or impairments are of
such severity that [s]he 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 [s]he lives, or
whether a specific job vacancy exists for [her], or
whether [s]he would be hired if [s]he 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 Commissioner’s motion to affirm the
determination that claimant is not disabled.
Background
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step sequential evaluation process described in 20 C.F.R.
§§ 404.1520. Accordingly, he first determined that claimant had
not been engaged in substantial gainful employment since her
alleged onset of disability. Next, the ALJ concluded that the
8
medical evidence of record indicates that the claimant has
“problems with her left shoulder, carpal tunnel syndrome and
effects of medications, impairments that are severe within the
meaning of the Regulations.” Transcript at 1 6 . However, the ALJ
determined that claimant’s impairments were “not severe enough to
meet or medically equal one of the impairments listed in Appendix
1 , Subpart P, Regulations N o . 4.” Id.
Next, the ALJ assessed claimant’s residual functional
capacity (“RFC”) and concluded that she:
retains the residual functional capacity to lift and
carry and push or pull no more than 20 pounds
occasionally and only up to 10 pounds frequently.
Further, the claimant cannot repetitively reach above
shoulder level, cannot perform tasks requiring fine
finger movement and is moderately limited in her
ability to understand, remember and carry out complex
work instructions.
Transcript at 1 7 . In light of that assessment of claimant’s RFC,
the ALJ concluded that she could not perform her past relevant
work, which required her to lift 50 pounds occasionally and up to
25 pounds frequently. He did, however, find that claimant was
capable of performing a range of light and sedentary work, with
9
some limitations imposed by her exertional and non-exertional
impairments. Id.
Finally, the ALJ asked the vocational expert whether there
is a significant number of jobs in the national economy that
might be performed by an individual with claimant’s age,
educational background, and exertional and non-exertional
limitations (as found by the A L J ) . The vocational expert opined
that there is a significant number of jobs that such an
individual might perform. Consequently, at the close of the
hearing, the ALJ informed claimant and her attorney that, based
on the evidence and testimony before him, he felt compelled to
conclude that claimant was not disabled and specifically asked
claimant’s counsel what evidence supported claimant’s assertion
that she is disabled.
ALJ: Based upon the evidence that I’ve seen . . . and
heard, I’ve got a denial of benefits here.
ATTY: I know I’ve . . . asked you before and you, you said
you can’t do this, but if I could . . . have two
weeks to get the consultive examination in from her
treating doctor now, I would appreciate that. . . . .
AJL: - what is he going to tell me?
10
ATTY: Well, he might - he might disagree with, with what
you think she can do on the - as t o , you know, the
eight-hour, for instance.
Transcript at 50-51. Later, the ALJ again asked claimant’s
attorney what evidence might support a finding of disability.
ALJ: Do you have any proposal as to how you’re going to
overcome a denial at this point?
ATTY: Well, the only thing I can say, Your Honor, is that
the doctor who is treating her is -
ALJ: Which doctor are we talking about?
ATTY: I think it’s Dr. [Toczylowski] who is the one that
she has switched to recently. And his most recent
report that we have is . . . May. If he is more
specific as to her limitations as to the problems,
physical, that she has and, and if he is . . .
specific as to what her limitations are, that could
be a situation where that’s new medical evidence that
neither you, Judge, or the VE has had an opportunity
to see. That’s basically i t .
Transcript at 56-57.
In light of those exchanges, the ALJ granted claimant one
week within which to submit additional evidence from her treating
sources. Claimant took the opportunity to supplement the record
with additional evidence she felt supported her disability claim.
First, she presented D r . Toczylowski’s “Medical Assessment of
11
Ability to do Work-Related Activities,” in which he concluded
that although claimant’s impairments did not affect her ability
to sit, stand, or walk for up to eight hours a day, she can not
lift more than five pounds even occasionally. Transcript at 380.
Additionally, claimant provided a Medical Assessment of Ability
to do Work-Related Activities completed by her physical
therapist, Candice Mangio, in which M s . Mangio opined that
claimant: (1) could, at most, lift no more that five pounds
occasionally; (2) has decreased shoulder strength and grip
strength; and (3) might pose a safety hazard to herself and/or
those around her if she were required to lift or carry objects as
part of her employment. Transcript at 374.
In the end, however, the ALJ concluded that, “Dr.
Toczylowski medically assessed the claimant as being able to
perform physical functions consistent with a range or light and
sedentary work.” Transcript at 1 6 . Similarly, he determined
that, “claimant’s physical therapist also assessed the claimant
with the functional ability to perform [a] range of light and
sedentary work with limitations against overhead reaching due to
pain, decreased strength and limitation of motion involving the
12
upper extremity.” Id. Accordingly, at step five of the
sequential analysis, the ALJ concluded that claimant “is capable
of making a successful adjustment to work that exists in
significant numbers on the national economy. A finding of ‘not
disabled’ is therefore reached within the framework of Medical-
Vocational Rules . . ..” Transcript at 18-19.
In support of her motion to reverse or remand, claimant
raises three arguments: first, that the ALJ erroneously assessed
her RFC; second, that the ALJ incorrectly calculated her age and
improperly treated her as a “younger individual,” rather than as
someone “approaching advanced age”; and, finally, that the ALJ
improperly discounted claimant’s subjective complaints of pain.
The Commissioner defends each of the challenged decisions by the
ALJ as either substantially supported by record evidence o r , in
the case of the erroneous calculation of claimant’s age, as
immaterial to the ALJ’s ultimate finding of no disability.
Because the court concludes that the ALJ’s determination of
claimant’s RFC is not supported by substantial evidence, it need
not address the merits of her remaining claims.
13
Discussion
The record contains the opinions of four individuals - three
doctors (at least two of whom qualify as “treating sources”) and
a physical therapist - who opined that claimant is incapable of
lifting more than five pounds even occasionally.2 See Treatment
notes of Alan Curtis, M.D., Transcript at 224 (opining that
claimant could lift no more than five pounds); Consultative
Evaluation notes of Denrick Crespi, D.O., Transcript at 232
(same); Medical Assessment of Candice Mangio, P T , Transcript at
374 (same); Medical Assessment of Harry Toczylowski, M.D.,
Transcript at 379 (same). Notwithstanding those opinions, the
ALJ concluded that claimant retains the residual functional
capacity to lift and carry up to 20 pounds occasionally and up to
10 pounds frequently.
The ALJ appears to have based his opinion, at least in part,
on an erroneous interpretation of some of the medical evidence
before him. For example, he concluded that, “Dr. [Toczylowski]
medically assessed the claimant as being able to perform physical
2
Both D r . Curtis and Dr. Toczylowski qualify as
“treating sources.” See 20 C.F.R. § 404.1527(d).
14
functions consistent with a range of light and sedentary work.”
Transcript at 1 6 . As noted above, however, Dr. Toczylowski
opined that claimant was not capable of lifting more than five
pounds even occasionally. Id., at 379. With regard to the
treatment notes and evaluation prepared by M s . Mangio, the ALJ
concluded, “the claimant’s physical therapist also assessed the
claimant with the functional ability to perform [a] range of
light and sedentary work.” Id., at 1 6 . Again, however, that
interpretation of the medical evidence is not accurate. Like
several other health care providers, M s . Mangio opined that
claimant was incapable of lifting or carrying more than five
pounds, id., at 374 - a functional limitation which, if true,
would disqualify claimant from performing even sedentary work.3
3
Social Security Ruling 96-9p, 1996 WL 374185 (July 2 ,
1996), provides that, “The ability to perform the full range of
sedentary work requires the ability to lift no more than 10
pounds at a time and occasionally to lift or carry articles like
docket files, ledgers, and small tools.” If claimant can lift no
more than five pounds even occasionally, she would not be capable
of performing a full range of sedentary work (nor, necessarily,
could she perform the more strenuous tasks associated with
“light” work). Moreover, even if claimant were capable of
performing a full range of sedentary work (though not light
work), she would still be disabled in light of her age,
education, and work history. See Medical-Vocational Guidelines
of Appendix 2 of Subpart P of the Regulations (also known as the
“Grid”), § 201.09.
15
In discussing the weight that will be ascribed to the
opinions of “treating sources,” the pertinent regulations
provide:
Generally, we give more weight to opinions from [the
claimant’s] treating sources, since these sources are
likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the
claimant’s] medical impairments(s) . . . 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 you treating
source’s opinion.
20 C.F.R. § 404.1527(d)(2). See also Social Security Ruling,
Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, SSR 96-
2 p ,
1996 WL 374188 (July 2 , 1996) (when the ALJ renders an
adverse disability decision, his or her notice of decision “must
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.”). Here, the ALJ appears to have misinterpreted the
16
medical opinions of some of claimant’s medical professionals,
including two of her treating sources. At a minimum, he did not
adequately explain the basis for his decision not to give
controlling weight to those medical opinions.4
To be sure, there is some evidence in the record supportive
of the notion that claimant is capable of lifting perhaps as much
as 20 pounds on an infrequent basis, and 10 pounds more
frequently. See Functional Capacity Assessment prepared by Hugh
Fairley, M.D., dated November, 1999, transcript at 241;
Functional Capacity Assessment prepared by Marci Lipski, dated
February, 2000, transcript at 246. Importantly, however, neither
Dr. Fairley nor Dr. Lipski was a treating source, nor did either
have the benefit of the reports prepared by D r . Toczylowski and
M s . Mangio, which the ALJ allowed claimant to add to the record
shortly after the administrative hearing. See generally Rosario
v . Apfel, 85 F. Supp. 2d 6 2 , 67-69 (D.Ma. 2000) (discussing the
situation in which a non-examining physician opines as to a
4
While the ALJ’s opinion discusses (and seems, at least
in part, to misinterpret) the most recent opinions given by Dr.
Toczylowski and M s . Mangio, it does not specifically address (or
discuss why the ALJ chose to discount) Dr. Curtis’s opinion that
claimant is capable of lifting and carrying no more than five
pounds.
17
claimant’s RFC without having had the opportunity to review
claimant’s entire medical record).
This case, like many of its sort, presents a close and
difficult call. In the end, however, the court is constrained to
conclude that the ALJ failed to adequately explain the basis of
his decision to discount the opinions of claimant’s health care
providers (at least two of whom are “treating sources”), who
opined that she is incapable of lifting or carrying more than
five pounds on even an infrequent basis. In the absence of such
an explanation, the court cannot conclude that there is
substantial evidence in the record to support the ALJ’s
determination that claimant is capable of lifting and carrying up
to 10 pounds frequently and as much as 20 pounds infrequently.
Consequently, the ALJ’s determination that claimant is capable of
performing a range of light and sedentary work also lacks
substantial support in the record. See generally 20 C.F.R. §
404.1527(d)(2).5
5
Parenthetically, the court notes that the ALJ’s
conclusion that, “The claimant’s daily activities are not
significantly impacted by her pain or subjective complaints,”
transcript at 1 7 , appears to be inconsistent with claimant’s
largely unrebutted testimony concerning her daily activities and
the extent to which she depends upon her sister for assistance.
18
Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that the ALJ’s disability determination is not
supported by substantial evidence in the record. Accordingly,
claimant’s motion to reverse or remand the decision of the
Commissioner (document n o . 8 ) is granted in part and denied in
part. To the extent claimant seeks a remand of this matter, her
motion is granted. In all other respects, it is denied. The
Commissioner’s motion to affirm her decision (document n o . 10) is
denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), this matter
is remanded to the ALJ for further proceedings. The Clerk of the
Court shall enter judgment in accordance with this order and
close the case.
See Transcript at 2 7 , 3 0 , 35-38, and 4 1 .
19
SO ORDERED.
Steven J. McAuliffe
United States District Judge
June 1 1 , 2002
cc: Tanya P. Millett, Esq.
Kenneth F. Langley, Esq.
David L. Broderick, Esq.
20
