Kenerson v . SSA 10-CV-161-SM 5/20/11
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bradley Paige Kenerson,
Claimant
v. Case N o . 10-cv-161-SM
Opinion N o . 2011 DNH 074
Michael J. Astrue, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), Claimant,
Bradley Paige Kenerson, moves to reverse the Commissioner’s
decision denying his application for Social Security Disability
Insurance Benefits under Title II of the Social Security Act (the
“Act”),
42 U.S.C. § 423, and Supplemental Security Income
Benefits under Title XVI of the Act,
42 U.S.C. §§ 1381-1383c.
The Commissioner objects and moves for an order affirming his
decision.
Factual Background
I. Procedural History
On February 6, 2008, claimant filed an application for
disability insurance benefits under Title II of the Act, as well
as Supplemental Security Income benefits under Title XVI,
alleging that he had been unable to work since December 2 1 , 2005.
He asserts eligibility for benefits on the basis of physical and
mental disabilities. His application was denied and he requested
an administrative hearing before an Administrative Law Judge
(“ALJ”).
On November 1 3 , 2009, claimant and an impartial vocational
expert appeared before an ALJ, who considered claimant’s
application de novo. Claimant was represented by counsel at the
hearing. Eleven days later, on November 2 4 , 2009, the ALJ issued
his written decision, concluding that claimant retained the
residual functional capacity to perform the full range of work at
all exertional levels, subject to limitations relating to an
anxiety condition. Accordingly, the ALJ concluded that claimant
was not disabled, as that term is defined in the Act, from
December 2 1 , 2005, through the date of the ALJ’s decision.
Claimant was informed that the Decision Review Board had
selected the ALJ’s decision for review. On March 5 , 2010, the
Decision Review Board informed claimant that it had not completed
its review within the time allowed. 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
2
substantial evidence and seeking a judicial determination that he
is disabled within the meaning of the Act o r , in the alternative,
seeking a remand for further administrative review. 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 3 ) . Those motions are pending.
II. Stipulated and Supplemental Facts
Pursuant to this court’s Local Rule 9.1(d), the parties
submitted a statement of stipulated facts which, because it is
part of the court’s record (document n o . 1 4 ) , need not be fully
recounted in this opinion. Those facts relevant to this
disposition are addressed as necessary.
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
3
conclusive if supported by substantial evidence.1 See 42 U.S.C.
§§ 405(g); 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 substantial evidence.”). See also
Rodriguez v . Secretary of Health & Human Services,
647 F.2d 218,
222 (1st Cir. 1981) (“We must uphold the [Commissioner’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 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)
1
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. 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. Consolo v . Federal
Maritime Comm’n.,
383 U.S. 607, 620 (1966).
4
(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 when those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services,
829 F.2d 192,
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
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
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 & Human Services,
944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, claimant must prove that his
5
impairment prevents him from performing his 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, 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. 808, 810-11 (D. Mass. 1982).
If claimant demonstrates an inability to perform his
previous work, the burden shifts to the Commissioner to show that
there are other jobs in the national economy that he can perform.
See Vazquez v . Secretary of Health & Human Services, 683 F.2d 1 ,
2 (1st Cir. 1982). See also
20 C.F.R. §§ 404.1512(g). If the
Commissioner shows the existence of other jobs that claimant can
perform, then the overall burden to demonstrate disability
remains with claimant. See Hernandez v . Weinberger,
493 F.2d
1120, 1123 (1st 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) claimant’s subjective claims of pain and
disability, as supported by the testimony of claimant or other
witnesses; and (3) claimant’s educational background, age, and
6
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 claimant is engaged in substantial
gainful activity;
(2) whether claimant has a severe impairment;
(3) whether the impairment meets or equals a
listed impairment;
(4) whether the impairment prevents claimant from
performing past relevant work; and
(5) whether the impairment prevents claimant from
doing any other work.
20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
his:
physical or mental impairment or impairments are of
such severity that he is not only unable to do his
previous work but cannot, considering his 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 he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
7
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 Mr. Kenerson 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 and 416.920. Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability. Next, he concluded that
claimant has the severe impairments of an anxiety disorder and a
panic disorder. Administrative Record (“Admin. Rec.”) 9.
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 404, Subpart P, Appendix 1 . Admin.
Rec. 1 0 .
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform “a full range of work at
all exertional levels except that he must avoid working in
locations that would trigger his symptoms of anxiety such as
8
heights and dangerous hazards.” Admin. Rec. 1 1 . The ALJ
concluded, therefore, that claimant was not capable of performing
his past relevant work as a heavy demolition equipment machine
operator. Admin. Rec. 1 2 .
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform. Relying upon
the testimony of a vocational expert as well as his own review of
the medical record, the ALJ concluded that, notwithstanding
claimant’s limitations, “there are jobs that exist in significant
numbers in the national economy that the claimant can perform,”
such as cleaner/janitor, warehouse worker, handpacker, and
delivery driver, among others. Admin. Rec. 1 3 .
Consequently, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act, through the date
of his decision. Admin. Rec. 1 4 .
II. The Claimant’s Treating Source Opinion Evidence
Claimant argues for reversal of the Commissioner’s final
decision on several grounds, including that the ALJ breached his
9
duty to explain the weight he gave the opinions of claimant’s
treating psychiatrist, Dr. Fallon.2
The ALJ’s duty to consider “all evidence,” 20 C.F.R.
§ 404.1520(a)(3), does not invariably require discussion of all
relevant evidence. Spinale v . Barnhart, Case N o . Civ. 03-069,
2004 WL 45518, at *5 (D.N.H. Jan. 5 , 2004) (“[A]n ALJ’s written
decision need not directly address every piece of evidence in the
administrative record.”) (citing Shaw v . Secretary of Health and
Human Services,
25 F.3d 1037 (Table),
1994 WL 251000, at *5 (1st
Cir. June 9, 1994)). But an exception applies to “medical
opinions” given by a claimant’s treating providers. See
20
C.F.R. § 404.1527 (d)(2). 3 When presented with such opinions,
the ALJ is obligated by regulation to undertake a specific
analytical protocol and explain in writing the weight accorded
2
Because claimant’s argument regarding Dr. Fallon’s
medical opinions has merit, and because the case is remanded, the
court does not reach claimant’s similar argument with respect to
Drs. Thomas and Logan, each of whom provided opinions about the
claimant’s allegedly debilitating headaches. The court notes,
however, that the regulations’ requirement — that the ALJ explain
the weight accorded treating source medical opinions and the
reasons why — applies to all treating source medical opinions.
See § 1527(d)(2).
3
A treating source is the claimant’s “own physician,
psychologist, or other acceptable medical source” who has
provided the claimant with treatment or evaluation in an “ongoing
treatment relationship.” 20 C.F.R. § 404.1502. “Medical
opinions are statements . . . that reflect judgments about the
nature and severity of [the claimant’s] impairment(s).”
20
C.F.R. § 404.1527(a)(2).
10
such evidence and the reasons why. 20 C.F.R. § 404.1527(d)(2).
Specifically,
An ALJ must give the opinion of a treating source
controlling weight if he finds the opinion “wellsupported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent
with the other substantial evidence in [the] case
record.” [20 C.F.R. § 404.1527(d)(2)]. If the opinion
of a treating source is not accorded controlling
weight, an ALJ must apply certain factors-namely, the
length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment
relationship, supportability of the opinion,
consistency of the opinion with the record as a whole,
and the specialization of the treating source-in
determining what weight to give the opinion. Id.
. . . [T]he regulation also contains a clear procedural
requirement: “We will always give good reasons in our
notice of determination or decision for the weight we
give [the claimant's] treating source's opinion.” Id.
Wilson v . Comm. of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004). 4
Giving “good reasons” means providing “specific reasons”
that will allow “subsequent reviewers [to know] . . . the weight
the adjudicator gave to the treating source's medical opinion and
the reasons for that weight.” SSR 96-2P, 1996 WL 374188, at *5
(1996). Accordingly, where no such “specific reasons” are given,
remand is appropriate if the failure renders meaningful review
4
The standards embodied in the regulation are sometimes
referred to as the “treating physician rule.” See e.g., Foley v .
Astrue, Case N o . 09-10864-RGS, 2010 WL 2507773, at *8 (D. Mass.
June 1 7 , 2010).
11
impossible.5 See Lord v . Apfel, 114 F. Supp. 2d 3 , 14 (D.N.H.
2000). In Lord, the ALJ “did not address” the treating
physician’s “evaluation of [the claimant’s] . . . functional
limitations.”
Id. On that record, the court could not
“determine whether [the ALJ] . . . properly weighed that evidence
in light of the applicable factors listed in the SSA
regulations.”
Id. Finding it “impossible to determine whether
. . . [the medical opinion] evidence was considered and
implicitly discredited or instead was simply overlooked,” the
court remanded for further proceedings.
Id. at 1 5 . See also
Smith v . Barnhart, Case N o . Civ. 02-081-M,
2003 WL 1191401, at *7
(D.N.H. March 1 2 , 2003) (remanding for further consideration
where “the ALJ did not account for several of the limitations
from which [claimant’s treating physician] . . . believes
claimant suffers and failed to adequately explain the basis for
5
There is no clear consensus among courts as to whether an
ALJ’s failure to discuss treating source medical opinions
requires remand even where substantial evidence supports the
ALJ’s decision. Compare Wilson, 378 F.3d at 544 (where ALJ’s
violation of regulation requiring ALJ to “give good reasons for
not giving weight to” the medical opinion of a treating physician
was not de minimus, reversal was required “[a]lthough substantial
evidence otherwise support[ed] the decision of the
Commissioner”), with Miller v . Barnhart, Case N o . 05-15720,
2006
WL 1490162, at *4 (11th Cir. May 3 1 , 2006) (an ALJ’s failure to
comply with regulatory requirement that he “‘give good reasons’
for not giving weight to a treating physician’s opinion,” may be
excusable as “harmless error”). That issue need not be addressed
here because remand is warranted in any event on grounds that
meaningful review is foreclosed by the ALJ’s failure.
12
his (implicit) decision not to give controlling weight to those
medical opinions”).
“Medical opinions” for which the ALJ must provide adequate
discussion include not only treating physician statements about
the claimant’s physical limitations, but also treating
psychiatrist statements of “mental restrictions” and “symptoms,
diagnosis and prognosis.” 20 C.F.R. § 404.1527(a)(2).
Here, the ALJ found claimant limited mentally only due to
his anxiety regarding “heights and dangerous hazards,” Admin.
Rec. 1 1 , but Dr. Fallon’s medical opinions — diagnoses and
findings relating to claimant’s mental limitations and symptoms —
arguably support a finding of broader and more significant
limitations. See Lord, 114 F. Supp. 2d at 14 (in light of ALJ’s
failure to discuss treating source medical opinions, court
remanded where “[a]t least some of [that] . . . evidence is
relevant to (and arguably supports) Lord’s claim.”). Dr.
Fallon’s medical opinions include the following findings:
1. “Limitations on . . . persistence/pace: claimant
demonstrates . . . difficulty with changes in routine
resulting in anxiety and panic attacks, would have
difficulty with attendance . . .” (November 2009
13
“Attending Physician’s Statement of Disability”),
Admin. Rec. 159; 6
2. “Social Interactions: Very limited . . . Stress
Reaction: does react to stress excessively in the wake
of his history of trauma.” (June 2008 “Disability
Determination Services, Mental Impairment
Questionnaire”), Admin. Rec. 433;
3. Claimant “continues to have quite significant
symptoms due to Posttraumatic Stress Disorder, which
are exacerbated by life circumstances.” (October 2008
Treatment Notes), Admin. Rec. 511;
4. Claimant has “significant anxiety about ordinary
tasks.” (March 2008 Treatment Notes), Admin. Rec. 287
The ALJ did not provide any “reasons for the weight,” SSR
96-2P, 1996 WL 374188, at *5 (1996), he gave to these medical
opinions. In fact, the ALJ was silent as to what weight he
assigned them. And the weight accorded cannot be derived
implicitly from the ALJ’s written decision. For example, the
6
Dr. Fallon’s medical opinion of November 2009 regarding
limitations in changes in routine and attendance contrasts with
the state agency consultant’s opinion (to which the ALJ gave
“substantial weight”) that claimant “is able to persist to task
throughout a normal work day and work week . . . He retains the
ability to accommodate to routine change in a familiar setting.”
Admin. Rec. 468. The differences between these two opinions may
be material to the outcome in this case because the ALJ’s
hypothetical to the Vocational Expert (in response to which the
VE stated that jobs are available) paralleled the state agency
consultant’s findings: “I want you to assume that he . . . can
maintain a schedule and persist to task on that schedule and he
would be able to do that throughout a normal workday and a work
week . . . [and] he does retain the ability to accommodate
routine changes in a familiar setting.” (Hrg. Tr. pgs. 19-20),
Admin. Rec. 37-38.
14
decision credits the “objective” findings contained in Dr.
Fallon’s March 2008 treatment notes (i.e., findings relating to
claimant’s “mental status examination”), Admin. Rec. 1 1 , but does
not mention the medical opinion, contained in those same notes,
that claimant “has significant anxiety about ordinary tasks.”
Admin. Rec. 287. The decision, therefore, leaves no clear
impression of what weight has been assigned to that treating
source material as a whole, or the medical opinions contained in
them.7 The only discernable weight assignment in the ALJ’s
decision is the “substantial weight” accorded the opinion of the
non-examining state agency consultant. Of course, it may be that
an agency consultant’s opinion deserves substantial weight, while
the treating source opinions deserve little or none; but that
determination requires an explanation. See Smith, 2003 WL
1191401, at *7 (“[T]he ALJ is entitled to reject Dr. Lavallee's
opinions or accept them only in part. If he does s o , however, he
should discuss the reasons for ascribing less than ‘controlling
weight’ to those opinions.”)
Because on this record it is “impossible to determine
whether . . . [the medical opinion] evidence was considered and
7
As the defendant concedes, Doc. N o . 13-1, pgs. 9-10,
although an ALJ need not adopt all or any part of a particular
provider’s report, he must state his reasons for adopting only a
portion of i t . See Rawson v . Astrue, Case N o . 09-469-BW, 2010 WL
2923902, at *2 (D. M e . July 1 9 , 2010). That was not done here.
15
implicitly discredited or instead was simply overlooked,” Lord,
114 F. Supp. 2d at 1 4 , the court is unable to meaningfully review
the ALJ’s decision. See
id. at 15-16; see also Watkins v .
Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003) (“[T]he ALJ
offered no explanation for the weight, if any, he gave to the
opinion of Dr. Rowland, the treating physician. We must remand
because we cannot properly review the ALJ's decision without
these necessary findings.”) (citations and internal punctuation
omitted). Accordingly, this case is remanded to the ALJ to
obtain the required discussion and determination with respect to
Dr. Fallon’s treating source medical opinions, consistent with
the mandate set out in
20 C.F.R. § 404.1527(d)(2).8
8
The ALJ also failed to comply with the requirement that
he “explain the consideration,” SSR 96-5p, 1996 WL 374183, at * 6 ,
he gave to claimant’s treating source opinions that claimant is
“disabled” and “unable to work.” Although such opinions are
never entitled to controlling weight because they are opinions
“on issues reserved for the Commissioner,”
id., the ALJ’s failure
to discuss the consideration he gave them may warrant remand.
See e.g., Bergeron v . Astrue, Case N o . 09-CV-070-SM,
2009 WL
3807156, at *5 (D.N.H. Nov. 1 0 , 2009) (remanding where, among
other things, ALJ failed to discuss treating physician’s opinion
that claimant was “incapacitated”). Because this case is
remanded on other grounds, however, the court need not decide if
remand for this particular failure is warranted.
As for the opinions expressed by claimant’s social worker,
who provided individual psychotherapy, she is not a “treating
source” under the regulations. See 20 C.F.R. §404.1513(a); §
404.1502. Therefore, although the ALJ was required to consider
her opinions, Alcantara v . Astrue, Case N o . 07-1056,
2007 WL
4328148, at *2 (1st Cir. Dec. 1 2 , 2007), he was not obligated to
explain the consideration he gave them. See Alworden ex rel.
K.L.A. v . Comm. of Soc. Sec., Case N o . 09-cv-1040,
2011 WL
1118611, at *3 (W.D. Mich. Jan. 2 4 , 2011).
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III. Claimant’s Remaining Objections
Claimant’s additional arguments for reversal are not
addressed in light of the remand.
Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document n o . 9 ) is granted and the
Commissioner’s motion to affirm his decision (document n o . 13) is
denied. The case is remanded for further proceedings in
accordance with this order. Because this remand is made pursuant
to sentence four of 42 U.S.C. § 405(g), the Clerk of Court is
instructed to enter judgment in accordance with this order and
close the case.
SO ORDERED.
May 2 0 , 2011
cc: Raymond J. Kelly, Esq.
T . David Plourde, Esq.
17
