Brouillard v . SSA 07-CV-367-SM 08/06/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Shirley I . Brouillard,
Claimant
v. Civil N o . 07-cv-367-SM
Opinion N o . 2008 DNH 134
Michael J. Astrue, Commissioner,
Social Security Administration
Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), Shirley Brouillard 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 his
decision. Because the Commissioner’s decision fails to address
claimant’s obesity and its likely adverse impact on her ability
to walk and climb stairs, and because it does not explain the
basis for rejecting the medical opinions of one of claimant’s
treating physicians, the court concludes that it is appropriate
to remand this matter to the Administrative Law Judge for further
consideration.
Factual Background
I. Procedural History.
On October 2 5 , 2005, claimant filed an application for
disability insurance benefits under Title II of the Act, alleging
that she had been unable to work since September 2 4 , 2005, due to
right knee pain as a result of total right knee replacement,
blindness in her right eye and compromised vision in her left
eye, diabetes, and obesity. Her application was denied and she
requested a hearing before an Administrative Law Judge (“ALJ”).
On February 5 , 2006, claimant and her sister, Ellen
Guimond,1 appeared (and testified) before an ALJ, who considered
claimant’s application de novo. On February 2 3 , 2006, the ALJ
issued her written decision, concluding that claimant retained
the residual functional capacity to perform the physical and
mental demands of sedentary work and, therefore, had the ability
to perform her prior work as an assistant service manager.
Accordingly, the ALJ concluded that claimant was not disabled, as
1
The correct spelling of this witness’s name is unclear; the
hearing transcript shows it as “Demond,” the parties’ Joint
Statement of Material Facts shows its as “Desmond,” and both the
ALJ’s decision and claimant’s Disability Report, Admin. Rec. at
4 7 , show it as “Guimond.”
2
that term is defined in the Act, at any time prior to the date of
the ALJ’s decision.
Claimant then sought review of that decision by the Appeals
Council, which denied her request. Accordingly, the ALJ’s denial
of claimant’s application for benefits became the final decision
of the Commissioner, subject to judicial review. Subsequently,
claimant filed a timely action in this court, asserting that the
ALJ’s decision was not supported by substantial evidence.
Claimant then filed a “Motion for Order Reversing Decision of the
Commissioner” (document n o . 9 ) . In response, the Commissioner
filed a “Motion for Order Affirming the Decision of the
Commissioner” (document n o . 1 0 ) . Those motions are pending.
II. Stipulated Facts.
Pursuant to this court’s 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.
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Standard of Review
I. Properly Supported 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.2 See
42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &
Human Services,
955 F.2d 765, 769 (1st Cir. 1991). 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 contrary
position. See Tsarelka v . Secretary of Health & 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
2
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 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. Consolo v . Federal
Maritime Comm’n.,
383 U.S. 6 0 7 , 620 (1966).
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substantial evidence.”). See also Rodriguez v . Secretary of
Health & Human Services, 647 F.2d 2 1 8 , 222-23 (1st Cir. 1981).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & 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
(citation omitted). 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 & Human Services,
829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
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
5
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(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. 1 3 7 , 146-47 (1987); Santiago v .
Secretary of Health & Human Services,
944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, the claimant must prove that her
impairments prevent 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 & 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).
If 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 & 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
6
Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H.
1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims 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 & Human Services, 797 F.2d 1 9 , 23 (1st Cir. 1986);
Goodermote,
690 F.2d at 6. When determining whether a claimant
is disabled, the ALJ is also 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.
20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
her:
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physical or mental impairment or impairments are of
such severity that [she] 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 [she] lives, or
whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
decision.
Discussion
I. Background - The ALJ’s Findings.
In concluding that M s . Brouillard 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, she first determined that claimant had
not been engaged in substantial gainful employment since her
alleged onset of disability, on September 2 4 , 2005. Next, she
concluded that claimant suffers from the following severe
impairments: “status-post total right knee replacement, right eye
blindness, and diabetes mellitus.” Administrative Record
8
(“Admin. Rec.”) at 1 8 . Nevertheless, the ALJ determined that
those impairments, regardless of whether they were considered
alone or in combination, did not meet or medically equal one of
the impairments listed in Part 4 0 4 , Subpart P, Appendix 1 .
Admin. Rec. at 1 9 .
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to lift and carry a maximum of ten
pounds occasionally and less than ten pounds frequently; to sit
for at least six hours in an eight-hour workday; and to stand and
walk for a maximum of two hours in an eight-hour workday.3 Given
those restrictions, the ALJ concluded that claimant retained the
ability to perform the exertional demands of sedentary work and,
therefore, could return to her prior job as an assistant service
manager. Admin. Rec. at 2 2 . Consequently, at step four of the
2
“RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*2 (July 2 , 1996) (citation omitted).
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sequential analysis, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act, through the date
of her decision.
II. Challenges to the ALJ’s Decision.
Claimant challenges the ALJ’s determination that she was
capable of performing the full range of sedentary work, asserting
that the ALJ committed several errors. The most persuasive of
claimant’s arguments is her assertion that the ALJ failed to
recognize that her impairments, when viewed in combination,
preclude her from engaging in any substantial gainful activity.
Claimant’s memorandum (document n o . 9-2) at 5 . See also
Claimant’s Reply Memorandum (document n o . 13) at 2 . In
particular, claimant asserts that the ALJ failed to discuss the
effect that her obesity has on her ability to walk, stand, and
climb stairs - particularly in light of her degenerative knee-
joint disease. The ALJ also neglected to address the opinions of
one of claimant’s treating sources - opinions which, if credited,
suggest that claimant is totally disabled.
In November of 2006, claimant’s orthopedic surgeon prepared
a “Medical Source Statement of Ability to Do Work-Related
10
Activities (Physical).” Admin. Rec. at 185-88.4 That report
suggests, among other things, that claimant can lift less than
ten pounds occasionally, stand and/or walk for less than two
hours during a normal workday (and must alternate between
standing and walking at 15 minute intervals); and can never climb
stairs or ramps. The latter finding is consistent with
claimant’s testimony that, for example, she must seek her
landlord’s assistance in getting her groceries up the stairs to
her second floor apartment and must often climb those stairs
backwards, “on [her] tush.” Admin. Rec. at 198-99.
Claimant’s testimony and the opinions of her orthopedic
surgeon are, however, dramatically at odds with the opinions
expressed by the non-examining state agency physician (which were
adopted by the A L J ) . Admin. Rec. at 174-83. Among other things,
the non-examining physician concluded that claimant could
frequently lift 10 pounds; she could stand and/or walk for at
least two hours during a normal workday; she had an “unlimited”
4
The signature on that document is illegible and the parties
have not identified the doctor who completed that form. See,
e.g., Joint Statement of Material Facts at 5 (identifying the
physician as simply “Plaintiff’s orthopedic surgeon”). Because
the signature does not appear to be that of D r . Goumas, the court
has assumed the report was prepared by D r . Eric R. Benson, the
orthopaedic surgeon with whom claimant had her first consultation
in November of 2005. See Admin. Rec. at 160.
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ability to push and/or pull hand and foot controls (a conclusion
which seems to overlook claimant’s lower extremity limitations);
and that claimant had no “visual limitations” (another finding at
odds with the medical record, which reveals that claimant is
completely blind in her right eye, requires substantial
correction in her left eye, and claims to have difficulty reading
printed material as well as information displayed on a computer
monitor).
Despite the dramatic conflict between the opinions offered
by claimant’s orthopedic surgeon and the non-examining state
agency physician, the ALJ adopted the latter without addressing
the former. Admin. Rec. at 2 1 . 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 your treating
source’s opinion.
12
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) (noting that 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, while the ALJ need not have accepted D r . Goumas’s
opinion that claimant “is disabled and . . . can no longer work,”
Admin. Rec. at 1 0 2 , she should have discussed her reasons for
discounting the opinions set forth in the Medical Source
Statement, Admin. Rec. at 185-88 - opinions that are consistent
with claimant’s testimony, her acknowledged severe impairments,
and her obesity. Compare 20 C.F.R. § 404.1527(e)(1) (discussing
the weight to be ascribed to opinions on issues reserved to the
Commissioner like, for example, opinions that a claimant is
“disabled” or “unable to work”), with
20 C.F.R. § 404.1527(d)
(discussing the weight to be ascribed to examining and treating
13
source opinions on medical issues, including a claimant’s
symptoms, diagnosis, prognosis, and physical limitations). In
concluding that claimant could perform the full range of
sedentary work, the ALJ did not account for several of the
exertional limitations from which claimant’s orthopedic surgeon
believes she suffers, nor did she adequately explain the basis
for her (implicit) decision not to give controlling weight to
those medical opinions.
Finally, because the court deems it appropriate to remand
this matter and afford the ALJ the opportunity to consider and
address the issues raised above, it probably bears noting that
she should also address claimant’s obesity and the extent, if
any, to which it affects her residual functional capacity to
perform sedentary work. As one of the Social Security Rulings
points out:
[W]e consider obesity to be a medically determinable
impairment and remind adjudicators to consider its
effects when evaluating disability. The provisions
also remind adjudicators that the combined effects of
obesity with other impairments can be greater than the
effects of each of the impairments considered
separately. They also instruct adjudicators to
consider the effects of obesity not only under the
listings but also when assessing a claim at other steps
of the sequential evaluation process, including when
assessing an individual’s residual functional capacity.
14
Social Security Ruling, Policy Interpretation Ruling Titles II
and XVI: Evaluation of Obesity, SSR 02-01p, 2000 WL 628049 (Sept.
12, 2002) at *1.
Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 9) is granted to the
extent she seeks a remand to the ALJ for further proceedings.
The Commissioner’s motion to affirm his decision (document no.
10) is denied.
Pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter
is hereby remanded to the ALJ for further proceedings consistent
with this order. The Clerk of Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
Steven J./McAuliffe
United States District Judge
August 6, 2008
cc: Raymond J. Kelly, Esq.
Robert J. Rabuck, Esq.
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