McAulay v . SSA 11-cv-95-SM 3/16/12
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Linda C . McAulay,
Claimant
v. Civil N o . 11-cv-095-SM
Opinion N o . 2012 DNH 031
Michael J. Astrue, Commissioner,
Social Security Administration
Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), claimant,
Linda McAulay, moves to reverse the Commissioner’s decision
denying her applications for Social Security Disability Insurance
Benefits and Supplemental Security Income Benefits under Titles
II and XVI of the Social Security Act,
42 U.S.C. §§ 423, 1381-
1383c. The Commissioner objects and moves for an order affirming
his decision.
For the reasons discussed below, the Commissioner’s motion
is denied and the claimant’s motion is granted, to the extent she
seeks a remand to the Administrative Law Judge.
Factual Background
I. Procedural History.
In February of 2009, claimant filed applications for
Disability Insurance Benefits and Supplemental Security Income
benefits, alleging that she had been unable to work since
November 7 , 2008, due to disabling pain from two herniated discs.
Administrative Record (“Admin. Rec.”) at 136. Those applications
were denied and claimant requested a hearing before an
Administrative Law Judge (“ALJ”).
In September of 2010, claimant, her attorney, and a
vocational expert appeared before an ALJ, who considered
claimant’s applications de novo. Three weeks later, the ALJ
issued his written decision, concluding that claimant retained
the residual functional capacity to perform the physical and
mental demands of a range of light work. Id. at 1 2 . Although
claimant’s limitations precluded her from performing her past
relevant work as a housekeeper, the ALJ concluded that there was
still a significant number of jobs in the national economy that
claimant could perform. Id. at 18-19. Accordingly, the ALJ
determined that claimant was not disabled, as that term is
defined in the Act, from November 7 , 2008, through the date of
his decision (October 1 3 , 2010). Id. at 1 9 .
2
The Decision Review Board selected the ALJ’s decision for
review, but it was unable to complete that review within the time
allowed. Admin. Rec. at 1 . Accordingly, the ALJ’s denial of
claimant’s applications 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 is not supported by substantial evidence and
seeking a judicial determination that she is disabled within the
meaning of the Act. She then filed a “Motion for Order Reversing
Decision of the Commissioner” (document n o . 1 1 ) . In response,
the Commissioner filed a “Motion for Order Affirming the Decision
of the Commissioner” (document n o . 1 4 ) . 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 6 ) , need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
3
Standard of Review
I. “Substantial Evidence” and Deferential Review.
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 and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See
42 U.S.C. §§ 405(g),
1383(c)(3). See also Irlanda Ortiz v . Secretary of Health &
Human Services,
955 F.2d 765, 769 (1st Cir. 1991). 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
a preponderance of the evidence, so 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). See also Richardson v . Perales,
402 U.S.
389, 401 (1971). Consequently, provided the ALJ’s findings are
properly supported, the court must sustain those findings even
when there may also be substantial evidence supporting the
contrary position. See, e.g., Tsarelka v . Secretary of Health &
Human Services,
842 F.2d 529, 535 (1st Cir. 1988); Rodriguez v .
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Secretary of Health & Human Services, 647 F.2d 2 1 8 , 222 (1st Cir.
1981).
II. The Parties’ Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if 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). See also 42 U.S.C. § 1382c(a)(3). 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, by a preponderance of the evidence, that
her impairment prevents her from performing her former type of
work. See Gray v . Heckler,
760 F.2d 369, 371 (1st Cir. 1985);
Paone v . Schweiker,
530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982). If
the claimant demonstrates 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
5
(1st Cir. 1982). See also 20 C.F.R. §§ 404.1512(g) and
416.912(g).
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 v . Secretary of Health & Human Services,
690 F.2d 5 , 6
(1st Cir. 1982). Ultimately, a claimant is disabled only if her:
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). 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 his
decision.
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Discussion
I. Background - The ALJ’s Findings.
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 and 416.920. Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: November 7 , 2008. Admin.
Rec. at 9. Next, he concluded that claimant suffers from the
following severe impairments: “status post fusion at L4/L5 level,
moderate degenerative disc disease at L3/L4 level, and mild
degenerative disc disease at L2/L3 level.”
Id. Nevertheless,
the ALJ determined that those impairments, regardless of whether
they were considered alone or in combination, did not meet or
medically equal any of the impairments listed in Part 4 0 4 ,
Subpart P, Appendix 1 . Id. at 11-12. Claimant does not
challenge those findings.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
light work.1 He noted, however, that claimant “can only
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
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occasionally climb, balance, stoop, kneel, crouch, and crawl.”
Id. at 1 2 . In light of those restrictions, the ALJ concluded
that claimant was not capable of returning to her prior job as a
housecleaning supervisor. Id. at 1 7 .
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, the ALJ concluded that,
notwithstanding claimant’s exertional limitations, she “is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” Id. at
19. Consequently, he concluded that claimant was not “disabled,”
as that term is defined in the Act, through the date of his
decision.
Claimant challenges that decision on three grounds,
asserting that the ALJ: (1) failed to properly consider all the
relevant medical evidence supporting her disability claim; (2)
erred in finding that her claims of disabling pain are not
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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entirely credible; and (3) failed to give appropriate weight to
the opinions of her treating physicians. Because the latter of
claimant’s three arguments has merit, it is sufficient to focus
exclusively on that claim.
II. Opinions of Claimant’s Treating Physicians.
Claimant asserts that the ALJ erred by failing to give
appropriate weight to the opinions of her treating physician, D r .
Kevin McGuire. D r . McGuire is Chief of Orthopedic Spine Surgery
at Beth Israel Deaconess Medical Center and evaluated claimant on
February 1 8 , 2010 and August 5 , 2010. As part of those
evaluations, D r . McGuire examined claimant and reviewed her MRI
and CT scans. In September of 2010, D r . McGuire completed a
“Medical Source Statement of Ability to Do Work-Related
Activities (Physical),” in which he opined that claimant could
occasionally lift no more than ten pounds; could sit, stand, and
walk for no more than 30 minutes at a time; could undertake no
activity for more than 30 minutes without a break; would
“frequently” miss work due to her pain; and that her ability to
maintain attention and concentration on work tasks throughout an
8-hour day would be “significantly compromised by pain.” Admin
Rec. at 616-22. Claimant challenges the ALJ’s decision to give
“the findings of D r . McGuire less weight in making [his]
determination of disability in this case.” Id. at 1 6 .
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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 impairment(s). If we find that a
treating source’s opinion on the issue(s) of the nature
and severity of [the claimant’s] impairments(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in
[the] case record, we will give it controlling weight.
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 [the claimant’s] 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) (“If a treating source’s
medical opinion is well-supported and not inconsistent with the
other substantial evidence in the case record, it must be given
controlling weight; i.e., it must be adopted.”).
Here, there is no doubt that D r . McGuire’s opinion is
consistent with, and supported by, substantial evidence in the
record including, for example, claimant’s reports of significant
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and debilitating pain; her periodic use of a back brace, a cane,
and powerful prescription pain medications; her receipt of
epidural steroid injections in an effort to manage that pain; her
two spinal surgeries; her MRI and CT scans; and the opinions of
several of claimant’s other treating physicians and pain
management specialists that she is either incapable of performing
the tasks associated with gainful activity o r , at best, arguably
capable of performing sedentary work. See, e.g., Admin. Rec. at
474, 4 7 8 , 526-30. Consequently, the potentially dispositive
question presented would seem to b e : Is D r . McGuire’s opinion
“not inconsistent with the other substantial evidence in the
record” and, therefore, entitled to controlling weight? See SSR
96-2p.
Having carefully reviewed both the medical record and the
ALJ’s written decision, the court concludes that the ALJ’s
decision does not identify sufficiently “substantial” evidence to
warrant his decision to discount D r . McGuire’s expert medical
opinions. For example, the ALJ noted that:
The claimant has had back pain since approximately
2007, which gradually worsened since that time. Prior
to her alleged onset date, the claimant had a
laminectomy and discectomy at L4-L5 in January 2008.
On the date of her alleged onset of disability,
November 7 , 2008, the claimant had fusion surgery at
the L4/L5 level to try to alleviate her symptoms of
persistent back pain. After her fusion surgery, the
claimant apparently “did well” for four or five months,
11
but her pain eventually recurred in the form of low
back pain, right leg pain, and left-sided buttock pain.
Admin. Rec. at 13 (citations omitted) (emphasis supplied). But,
as evidence that claimant is not “suffering from a disabling
level of pain that is as debilitating as the claimant alleges,”
Admin. Rec. at 1 3 , the ALJ points to medical records from that
four or five month period post-surgery, which suggest that
claimant recognized an “excellent benefit” from the surgery, was
“sitting comfortably” in the exam room, and could rise from a
seated position “without any problems.” Id. Plainly, such
evidence is not particularly persuasive or compelling, since
claimant herself acknowledges the temporary benefits she felt
from the spinal fusion surgery.
The ALJ also points to the fact that on a few occasions,
when claimant found it necessary to go to the emergency room to
seek treatment for acute back pain, she actually drove herself to
the hospital (despite the fact that she says she does not
tolerate travel in a car well) and that she missed several
physical therapy appointments (despite having been told by a
treating physician that such therapy was critical to her
recovery). Of course, neither of those facts is terribly
compelling, since claimant’s ability to endure the pain
associated with a drive to the emergency room says little about
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either her credibility or her ability to engage in substantial
gainful activities. And, as to the missed physical therapy
appointments, claimant explained that she was unable to attend at
least some of the missed appointments because her husband had
been hospitalized (apparently on two occasions) and she could not
secure a babysitter - testimony the ALJ’s written decision does
not discuss.
As further evidence that the claimant does not “suffer from
a disabling level of back pain,” the ALJ pointed to the fact
that, during one of her visits to the emergency room, claimant
reported that she had injured her back “lifting furniture.”
Admin. Rec. at 1 5 , 386. Again, however, in the context of the
entire record, that incident seems a somewhat minor indicator.
It may well illustrate that when claimant does attempt to engage
in some form of modest activity, her back pain is exacerbated to
the point of requiring emergency medical treatment.
The ALJ also made much of the fact that claimant told
several of her treating sources that she occasionally requires
the use of a cane to walk, despite having never actually been
prescribed a cane. Admin. Rec. at 15-16. But, given her history
of falling, it is difficult to see how her use of a cane
undermines her claim of disabling pain. The same is true of
13
claimant’s statements to various treating professionals that she
had been told to lift no more that 10 pounds. Although the ALJ
stated that “nowhere in the medical evidence of record is there
any such limitation,” Admin. Rec. at 1 6 , that is incorrect. Upon
her discharge from Wentworth-Douglas Hospital shortly after her
spinal fusion surgery, she was instructed “not to lift 10 pounds
until MD appointment.” Admin. Rec. at 331.
Finally, it probably bears noting that the “Physical
Residual Functional Capacity Assessment” prepared by the non-
examining state agency physician (Admin. Rec. at 360-67) and in
which the ALJ placed “great weight” (Id. at 17) is neither
terribly helpful nor particularly persuasive. First, the
preparing physician mistakenly (though through no fault of his
own) believed that claimant had recovered to the point that she
“actually had done some skiing.” Id. at 367. That was based
upon an error in claimant’s medical records. She subsequently
explained that she had merely accompanied others to a ski resort;
she did not do any actual skiing. Additionally, and perhaps more
importantly, that RFC assessment was prepared just a few months
after claimant’s second surgery. The record seems to indicate
that the benefits of that surgery were short-lived and claimant’s
chronic pain recurred in or around June of 2009 (approximately
one month after that RFC assessment was prepared). As a result,
14
when he rendered his medical opinions, the non-examining
physician did not have the benefit of claimant’s extensive
medical records (including evidence of numerous trips to the
emergency room, epidural steroid injections, prescription pain
medications, etc.) or the opinions of claimant’s various treating
sources. See, e.g., Spielberg v . Astrue, N o . 10-cv-463-PB, 2011
DNH 171 (D.N.H. Oct. 1 8 , 2011) (“A state agency consultant’s
opinion that is based on an incomplete record, when later
evidence supports the claimant’s limitations, cannot provide
substantial evidence to support the ALJ’s decision to deny
benefits.”) (citations omitted).
The court need not belabor the point. On this record, it
cannot conclude that the ALJ adequately supported his decision to
substantially discount the informed opinions of claimant’s
various treating professionals, who stated that claimant was, in
essence, unable to engage in substantial gainful activity. Most
importantly, the ALJ did not adequately explain his decision to
give the medical opinions of D r . Kevin McGuire less than
controlling weight.
Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document n o . 11) is granted to the
15
extent she seeks a remand to the ALJ for further proceedings.
The Commissioner’s motion to affirm his decision (document n o .
14) 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
,hief Judge
March 1 6 , 2012
cc: Michael D. Seaton, Esq.
T . David Plourde, Esq.
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