Morris v. Colvin, SSA CV-12-280-JL 6/6/13
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sascha Morris
v. Civil No. 12-cv-280-JL
Opinion No. 2013 DNH 085
Carolyn Colvin, Acting Commissioner,
Social Security Administration
SUMMARY ORDER
Sascha Morris appeals the Social Security Administration,s
("SSA") denial of her applications for Social Security Disability
Insurance and Supplemental Security Income. An administrative
law judge at the SSA ("ALU") ruled that, despite Morris's severe
impairment due to a herniated lumbar disc, she retains the
residual functional capacity to perform jobs that exist in
significant numbers in the national economy, and, as a result, is
not disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Appeals Council later denied Morris's reguest for review of the
ALU's decision, see
id. § 404.968(a), with the result that the
ALU's decision became the SSA's final decision on Morris's
application, see id. § 404.981. Morris then appealed the
decision to this court, which has jurisdiction under
42 U.S.C.
§ 405 (g) (Social Security) .
Morris has filed a motion to reverse the decision. See L.R.
9.1(b)(1). She argues that the ALU made three errors in
concluding that she retained the capacity to perform jobs that
exist in significant numbers in the national economy:
(1) the ALJ "ignored" Morris's migraine headaches;
(2) the ALJ did not contact Morris's treating physician to
clarify the basis of his opinion that Morris was disabled
before dismissing that opinion as unsupported by the record
evidence; and
(3) the ALJ did not adeguately support her finding that
Morris's subjective complaints of pain were not credible.
The Commissioner of the SSA has cross-moved for an order
affirming the ALJ's decision. See L.R. 9.1(d). He argues that
the A L J :
(1) specifically acknowledged Morris's history of
migraine headaches and took them into account when
rendering her decision;
(2) had no obligation to contact Morris's treating
physician for further clarification; and
(3) provided a sufficient rationale for her credibility
assessment.
As explained below, Morris's first two assignments of error
are without merit. The court agrees with Morris, however, that
the ALJ improperly assessed her credibility when testifying about
her pain and other symptoms, and accordingly grants her motion to
reverse (and denies the commissioner's motion to affirm) the
ALJ's decision.
The court therefore addresses the credibility issue first.
According to Social Security Ruling ("SSR") 96-7p, when a
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claimant alleges disability attributable in whole or in part to
"symptoms, such as pain, fatigue, shortness of breath, weakness
or nervousness"--as Morris did in this case--the ALJ must
undertake the following evaluation:
* First, the adjudicator must consider whether
there is an underlying medically determinable
physical or mental impairment(s)--i.e ., an
impairment(s) that can be shown by medically
acceptable clinical and laboratory diagnostic
technigues--that could reasonably be expected to
produce the individual's pain or other symptoms.
. . . If there is no medically determinable
physical or mental impairment(s), or if there is a
medically determinable physical or mental
impairment(s) but the impairment(s) could not
reasonably be expected to produce the individual's
pain or other symptoms, the symptoms cannot be
found to affect the individual's ability to do
basic work activities.
* Second, once an underlying physical or mental
impairment(s) that could reasonably be expected to
produce the individual's pain or other symptoms
has been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of
the individual's symptoms to determine the extent
to which the symptoms limit the individual's
ability to do basic work activities. For this
purpose, whenever the individual's statements
about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility
of the individual's statements based on a
consideration of the entire case record.
SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual's
Statements, 1996 WL 374186, *2 (S.S.A. 1996). In addition:
3
In recognition of the fact that an individual's
symptoms can sometimes suggest a greater level of
severity of impairment than can be shown by the
objective medical evidence alone, 20 CFR [§§]
404.1529(c) and 416.929(c) describe the kinds of
evidence, including the factors below, that the
adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an
individual's statements:
1. The individual's daily activities;
2. The location, duration, freguency, and
intensity of the individual's pain or other
symptoms;
3. Factors that precipitate and aggravate the
symptoms;
4. The type, dosage, effectiveness, and side
effects of any medication the individual takes or
has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the
individual receives or has received for relief of
pain or other symptoms;
6. Any measures other than treatment the
individual uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and
7. Any other factors concerning the individual's
functional limitations and restrictions due to
pain or other symptoms.1
1These seven considerations are commonly referred to as the
Avery factors in this circuit. See, e.g., Lalime v. Astrue, 2009
DNH 053, at 23-24 (citing Avery v. Sec'y of HHS,
797 F.2d 19 (1st
Cir. 1986)). "Detailed written discussion of the Avery factors
is desirable,"
id. (citing Frustaglia v. Sec'y of HHS,
829 F.2d
192, 195 (1st Cir. 1987)), to enable a reviewing court to
evaluate the basis for an ALJ's credibility determination. Here,
the ALJ's opinion does not discuss the Avery factors at all. To
4
Id. at *3. SSR 96-7p therefore "outlines a specific staged
inquiry that consists of the following questions, in the
following order: (1) does the claimant have an underlying
impairment that could produce the symptoms he or she claims?; (2)
if so, are the claimant's statements about his or her symptoms
substantiated by objective medical evidence?; and (3) if not, are
the claimant's statements about those symptoms credible?"
Griffiths v. Astrue, No. ll-cv-195-JL, 2012 WL 1565395 at *9
(D.N.H. Apr. 3, 2012) (citations omitted); see also Clavette v.
Astrue, No. 10-cv-580-JL,
2012 WL 472757 at *8 (D.N.H. Feb. 7,
2012) (outlining same inquiry).
Here, the ALJ appropriately addressed the first step in this
inquiry, concluding that Morris's "medically determinable
impairment could reasonably be expected to cause the alleged
symptoms." Admin. R. at 17. Rather than proceeding to the next
step and examining whether Morris's statements about her symptoms
be sure, an ALJ need not "slavishly discuss each of the factors,"
Ingle v. Astrue, No. 10-cv-103-SM, 2010 WL 5070766, at *6 (D.N.H.
Nov. 8, 2010), and may satisfy her obligation to consider the
factors simply by exploring them at the administrative hearing,
Lalime,
2009 DNH 053 at 24. An examination of the hearing
transcript reveals that the ALJ took testimony about many of the
Avery factors, but she does not appear to have explored all of
them. See generally Admin. R. at 42-51. The court would be
reluctant to reverse the ALJ's opinion solely on that basis, but
because remand is necessary for other reasons, it is worth noting
that further exploration of the Avery factors may be advisable on
remand.
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were substantiated by objective medical evidence, however, the
ALJ appears to have collapsed the second and third steps into a
single step. Specifically, the ALJ concluded that Morris's
"statements concerning the intensity, persistence, and limiting
effects of [her] symptoms are not credible," and noted in support
of this conclusion that
[Morris] told the examining agency program psychologist
that she freguently shops on the internet, enjoys
reading, does a moderate amount of socializing, etc.
which undercuts the picture she paints in her testimony
of lying around all day. Further, her primary care
physician noted that the claimant had resolution of all
of her tissue pain and the agency program psychologist
noted a negative mini mental state examination.
The claimant has not sought care from a specialist
since 2009. She has not had hospital emergency room
visits. While she has a measure of back pain the
neurological examinations of her primary care physician
are normal except for absent plantar reflexes
(bilaterally). Straight-leg raising is negative.
Id. (citations omitted) .
Thus, the ALJ relied on several pieces of objective medical
evidence--"a negative mini mental state examination," "the
neurological examinations of [Morris's] primary care physician,"
and the results of Morris's straight-leg raise--in finding that
Morris's statements concerning her symptoms were not credible.
But, as outlined above, "[t]he lack of objective medical evidence
supporting a claimant's statements about her symptoms is what
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triggers an ALJ's obligation to conduct a credibility assessment,
not evidence that the claimant's statements lack credibility."
Clavette, 2 012 WL 472757 at *9; see also Ingle, 2010 WL 507 07 66
at *6 (ALJ must find lack of support in objective medical
evidence before weighing credibility of claimant's complaints
about pain). So, by taking objective medical evidence into
account as a part of her credibility assessment, the ALJ did not
properly conduct the seguential inguiry mandated by SSR 96-7p,
and the court must reverse the ALJ's decision and remand the case
for further proceedings.
Morris's two remaining assignments of error are considerably
less well-taken. First, the ALJ did not "ignore" Morris's
migraine headaches, as Morris asserts. Indeed, Morris herself
concedes that the ALJ expressly acknowledged Morris's testimony
about the migraines in her written decision. See Admin. R. at
17. In light of this concession, the precise nature of Morris's
objection to the ALJ's evaluation of her migraines is unclear,
but her main grievance would appear to be that the ALJ did not
treat her migraines as an "impairment" and independently evaluate
their severity; instead, the ALJ treated them as a symptom of
Morris's herniated disc and associated back pain. See Memo, in
Supp. of Pl.'s Mot. to Reverse (document no. 12) at 10 (asserting
that the ALJ "never determined if the migraine headaches were a
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severe impairment" and "ignored the diagnosis migraine headaches
in contemplating [Morris's] impairments").
This argument is more than a little disingenuous. Although
Morris now contends that her migraines are "one of [her] major
medical impairments," id. at 12, she did not identify her
migraines as one of the "illnesses, injuries, or conditions that
limit [her] ability to work" in her application for benefits, see
Admin. R. at 182, nor did she identify them in her appeal from
the initial denial of her claim, see id. at 209. At no other
time prior to the hearing before the ALJ did Morris assert that
her migraines were one of her disabling conditions, and (so far
as the court has been able to tell) none of the medical records
she submitted to the agency reflect a diagnosis, or even so much
as a complaint, of migraines.2 It was not until the hearing
itself that Morris first mentioned her migraines, and even then
she did so only cursorily. See id. at 36, 39, 56. When, as
2Morris takes significant liberties with the record, stating
that "the treating physician's progress notes recorded the
diagnosis of chronic migraine headaches throughout the period of
alleged disability." Memo, in Supp. of Pl.'s Mot. to Reverse
(document no. 12) at 9 (citing record). Though the physician's
notes Morris cites in support of this assertion refer in passing
to migraine headaches, these references indicate that Morris had
a past medical history of migraines, not a current diagnosis of
migraines (let alone "chronic" migraines). None of those notes
indicate that Morris was seeking treatment for migraines, and
several of them explicitly state that at the time of Morris's
visits, headaches were "not present" or that her head was
"normal." See Admin. R. at 351, 355, 366, 369, 391, 394.
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here, "a claimant is represented, the ALJ should ordinarily be
entitled to rely on claimant's counsel to structure and present
the claimant's case in a way that claimant's claims are
adequately explored," Faria v. Comm'r of Soc. Sec., 187 F.3d 621
(1st Cir. 1998) (unpublished) (citation and internal quotation
marks omitted), and the SSA requlations also make clear that the
aqency "will consider only impairment(s) [a claimant claims to]
have or about which [the SSA] receives evidence" and that the
claimant has the burden of "brinq[inq] to [the SSA's] attention
everythinq that shows" disability,
20 C.F.R. § 404.1512(a).
Given the procedural history just recited, the court can ascribe
no error to the ALJ's treatment of Morris's miqraines as a
symptom of Morris's herniated disc, rather than as a standalone
impairment.3
Second, the ALJ had no duty to contact Morris's treatinq
physician. Dr. Rork, to seek clarification of his opinion that
Morris was disabled. The SSA requlations at 20 C.F.R. §§
404.1512(e) and 416.912(e), upon which Morris relies, require an
ALJ "to seek additional evidence or clarification from [a]
medical source when the report from [the] medical source contains
3In any event, if Morris truly believes her miqraine
headaches should be treated as an impairment and evaluated
accordinqly, she will be able to make that position clear to the
ALJ on remand.
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a conflict or ambiguity that must be resolved."4 They do not
require an ALJ to contact a medical source "when evaluations are
inconsistent with other information in the record or when the ALJ
finds the treating physician's opinion unpersuasive." Abubakar
v. Astrue, No. ll-cv-10456, 2012 WL 957623 at *11 (D. Mass. Mar.
21, 2012). That was the case here, where the ALJ specifically
found that Dr. Rork's opinion was "not supported by . . . the
other evidence of record." Admin. R. at 15. Given this finding,
which Morris does not challenge on appeal and which was well
within the ALJ's purview, see
20 C.F.R. §§ 404.1527(c),
416.927(c), the ALJ committed no reversible error by not
contacting Dr. Rork. Abubakar,
2012 WL 957623 at *11; see also
Cooper v. Astrue, No. 10-cv-10782,
2011 WL 1163127 at *7 (D.
Mass. Mar. 29, 2011) (ALJ did not err by not contacting treating
physicians where she "had substantial evidence before her
contradicting the treating physicians' opinions").
Based on the foregoing, Morris's motion to reverse the
Commissioner's decision5 is GRANTED, and the Commissioner's
4The regulations contained the quoted language at the time
the ALJ rendered her decision on Morris's claim, but were
subsequently amended to remove it. See How We Collect and
Consider Evidence of Disability, 77 Fed. Reg. 10651, 10655-56
(Feb. 23, 2012). Neither party has suggested that this amendment
has any significance to Morris's appeal.
5Document no. 11.
10
motion to affirm that decision6 is DENIED. See 42 U.S.C. §
405(g). The clerk shall enter judgment accordingly and close the
case.
SO ORDERED.
/oseph N. Laplante
nited States District Judge
Dated: June 6, 2013
cc: Michael James Kelley, Esg.
Tanya Paszko Millett, Esg.
T. David Plourde, Esg.
6Document no. 14.
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