Roberson v. SSA 13-cv-265-JD 1/22/14
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Sheila M. Roberson
v. Crvrl No. 13-CV-265-JD
Opinion No. 2014 DNH 010
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Sheila M. Roberson seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Commissioner of the
Social Security Administration, denying her application for
disability insurance benefits and supplemental security income.
In support, Roberson contends that the Appeals Council erred in
denying her request for review and asks that the case be remanded
for additional administrative proceedings. The Acting
Commissioner moves to affirm the decision.
Background
Roberson applied for disability insurance benefits and
supplemental security income on April 1, 2010. Roberson was
forty-eight years old at the time of her application. She had
previously worked as a waitress, bartender, and a deli worker.
She alleged disability caused by atrial fibrillation, depression,
and anxiety.
In March of 2010, Roberson was admitted to Franklin Regional
Hospital due to shortness of breath and was diagnosed with atrial
fibrillation, cardiomyopathy, questionable thyroid disorder,
congestive heart failure, and moderate chronic obstructive
pulmonary disease ("COPD"). After that episode, Roberson
scheduled an examination with Colleen Krug, PA-C. Krug found
irregular heart beat but normal respiration rhythm and depth,
normal heart sounds, and normal psychiatric appearance.
Roberson was evaluated in July of 2010 by Dr. Michael Evans.
Based on a series of tests. Dr. Evans found that Roberson was
capable of understanding and remembering instructions,
interacting appropriately, communicating effectively, sustaining
attention and completing tasks, tolerating work stress, making
simple decisions, maintaining attendance, and following
schedules. Dr. Evans concluded that Roberson's psychiatric
prognosis was good.
State agency reviewing psychologist, Michael Schneider,
Psy.D. reviewed Roberson's records on July 16, 2010. He
concluded that Roberson's mental impairments were nonsevere. He
found Roberson had mild restrictions in activities of daily life;
mild difficulties in social functioning; mild difficulties in
maintaining concentration, persistence, and pace; and no repeated
episodes of extended decompensation.
In August of 2010, Roberson had thyroid level testing that
showed good results. During the remainder of 2010 and into the
spring of 2011, Krug checked Roberson's breathing depth and
rhythm and prescribed medications for anxiety and depression.
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Because Krug did not feel comfortable continuing some of
Roberson's medications due to her medical issues and history of
alcoholism, Roberson met with Dr. Peter Moran in early May of
2011 to follow up on her medications. Dr. Moran described
Roberson's cognitive functioning and psychiatric appearance as
normal and assessed generalized anxiety disorder and a sleep
disturbance.
On May 11, 2011, Roberson was evaluated by Elizabeth Hess,
Ph.D. Dr. Hess described Roberson as depressed, irritable,
distractible, ruminating, hypersensitive, excessively worried,
and with poor concentration. In testing. Dr. Hess found that
Roberson's speech was circumstantial and vague and that Roberson
was cooperative but tense and pressured. Dr. Hess found that
Roberson had marked functional loss in activities of daily life,
moderate functional loss in social interaction, marked functional
loss in work-related performance, and marked functional loss in
reactions to stress. Dr. Hess diagnosed cognitive disorder
secondary to alcohol abuse and/or cardiac condition, bipolar II
disorder, alcohol abuse in remission, and personality disorder.
At a follow-up appointment on July 13, 2011, Roberson told
Dr. Moran that the medications were working. Dr. Moran noted
that Roberson's cognitive functioning and psychiatric appearance
were both normal. On August 4, 2011, Roberson returned to Dr.
Moran due to anxiety. Dr. Moran noted normal cognitive
functioning and psychiatric appearance and no behavioral
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abnormalities. He found an anxious mood and tearful affect and
increased Roberson's dose of Wellbutrin.
Dr. Hess evaluated Roberson again on August 1, 2011. Dr.
Hess found that Roberson was more depressed than she had been in
May. Based on test results. Dr. Hess found impaired executive
functioning, receptive and expressive language deficits,
disrupted attention, and an inability to review responses for
errors or omissions. Dr. Hess stated that Roberson's overall IQ
was sufficient for work but her inability to function
consistently and to spot mistakes would be disruptive in
employment. Dr. Hess reiterated her previous functional
findings.
Roberson saw Dr. Moran on September 6, 2011, after returning
from a visit to South Carolina. Roberson reported that she felt
refreshed. Dr. Moran noted that changes in Roberson's
medications had calmed her down, that Roberson was less anxious
and sleeping better, and that her cognitive functioning was
normal.
A hearing was held on January 12, 2012, before an
Administrative Law Judge ("ALJ"). Roberson testified that she
was unable to work because of her heart problems and COPD, which
made her tire easily. She also stated that she became depressed
at times. Roberson testified that she could walk for fifty yards
before needing rest, that she had difficulty staying focused, and
had problems with anxiety, including panic attacks at times. She
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said that on a typical day she has coffee after waking and cleans
the bathroom if she feels like doing something. She stated that
she was able to do chores but not all in one day, could cook her
meals, grocery shop, and did some pleasure reading. She also
said she lost her driver's license due to a DWI and smoked about
five cigarettes each day.
James Scorzelli testified as a vocational expert. Scorzelli
described Roberson's past work as a waitress as light semiskilled
work, work as a bartender as light and semiskilled, and as a deli
worker in a supermarket as light and unskilled. The ALJ
presented a hypothetical of a person who was forty-eight to fifty
years old, with a GED, and having Roberson's past work
experience. The person in the hypothetical was able to sit for
six hours and to stand and walk for six hours with rest and
change of position after two hours and had the ability to lift up
to fifty pounds occasionally and ten pounds freguently. The ALJ
also added restrictions to avoid environmental exposure, to avoid
hazards, and to be limited to uncomplicated tasks. Based on that
hypothetical, Scorzelli said that the worker could do Roberson's
past work at the deli in a supermarket although the restrictions
for sitting and standing could erode the number of jobs
available. Scorzelli stated that the hypothetical would allow
work as a surveillance monitor, a credit card checker, and a
parking garage cashier with all of the restrictions.
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In the second hypothetical, the ALJ added a need for
frequent breaks which would reduce the worker's productivity by
fifteen to twenty percent. Scorzelli explained that the
additional breaks and reduced productivity would mean an
inability to work.
After the hearing, Roberson's representative submitted
additional evidence to the ALJ. The ALJ issued a decision on
February 15, 2012, concluding that Roberson was not disabled
because she was able to return to her prior work in a supermarket
deli and could also do other jobs as described by the vocational
expert. Roberson sought review by the Appeals Council and
submitted additional medical evidence. On April 22, 2013, the
Appeals Council denied Roberson's request for review, stating
that the additional evidence taken alone or in combination with
the record evidence did not show a reasonable probability that
the outcome would be different.
Standard of Review
Ordinarily, the court reviews the decision of the ALJ and
"is limited to determining whether the ALJ deployed the proper
legal standards and found facts upon the proper quantum of
evidence." Nguyen v. Chafer, 172 F.3d 31, 35 (1st Cir. 1999);
accord Seavey v. Barnhart,
276 F.3d 1, 9 (1st Cir. 2001) . In
this case, however, Roberson challenges the decision of the
Appeals Council to deny review. " [A]n Appeals Council refusal to
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review the ALJ may be reviewable where [the Council] gives an
egregiously mistaken ground for this action." Mills v. Apfel,
244 F .3d 1 , 5 (1st Cir. 2001).
Discussion
In support of her motion to remand for additional
administrative proceedings, Roberson contends that the Appeals
Council was wrong in denying review because the additional
evidence she provided does show a reasonable probability that the
outcome would be different. Specifically, Roberson contends that
a guestionnaire completed by Dr. Emil Poliak, Jr. shows that she
could not do light work, as found by the ALJ, and a psychiatric
evaluation by Dr. Virginia Rockhill shows nonexertional
functional limitations, contrary to the ALJ's findings. The
Acting Commissioner seeks an order affirming the decision,
contending that substantial evidence supports the decision to
deny benefits and that the Appeals Council's decision not to
review the ALJ's decision was not egregiously mistaken.
A. Questionnaire
Roberson relies on a "Cardiac Impairment Questionnaire"
completed by Dr. Poliak, a cardiologist, on January 31, 2012. In
the guestionnaire. Dr. Poliak indicated that although Roberson
could sit for eight hours in a work day, she could only stand for
a total of one hour. Dr. Poliak also indicated more lifting
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limitations than the ALJ found and checked a box that Roberson
would have more than three unscheduled absences per month.
Roberson argues that Dr. Poliak's limitation on her ability
to stand contradicts the ALJ's finding that she could stand or
walk for six hours of the day. She further argues that Dr.
Poliak's limitation restricts her to sedentary work which would
lead to a finding of disabled under the Medical-Vocational
Guidelines, Table 1. Roberson contends that Dr. Poliak's finding
that she would have three or more absences per month contradicts
the ALJ's conclusion that she could work. Based on that
analysis, Roberson reasons that the Appeals Council mistakenly
concluded that the new evidence would not change the outcome of
the ALJ's decision.
The standard of review reguires Roberson to show that the
Appeals Council gave egregiously mistaken grounds for denying
review. Mills, 244 F.3d at 5. Roberson does not address the
applicable standard.
Grounds may be egregiously mistaken if the Appeals Council
denied review, concluding that the new evidence was not material
to the disability determination, when the new evidence was
material and reguired a different outcome. I d . at 5-6; see also
Brennan v. Barnhart, 2006 WL 217987, at *2-*3 (D. Me. Jan. 25,
2006) . On the other hand, when the Appeals Council considers new
evidence but concludes that it would not provide a basis for
changing the decision, that conclusion is not egregiously
mistaken as long as record evidence supports the decision. See
Shea v. Colvin,
2013 WL 5952992, at (D. Mass. Nov. 3,
2013); Moore v. Astrue,
2013 WL 812486, at *15 (D. Mass. Mar. 2,
2013); Robbins v. Astrue,
2010 WL 3168306, at *3-*4 (D.N.H. Aug.
9, 2010); Thibodeau v. Astrue,
2009 WL 903851, at *5 n.6 (D.N.H.
Mar. 31, 2009). That is what occurred here.
In this case, as the Acting Commissioner notes, the ALJ
relied on Dr. Moran's assessment that Roberson was capable of
doing full time work at the light exertional level. Dr. Moran
had a treatment relationship with Roberson over several years.
Dr. Poliak met with Roberson only once.1 In the guestionnaire.
Dr. Poliak wrote that Roberson's prognosis is stable and that her
cardiomyopathy is resolved, which appears to contradict the
limitations he found further on in the guestionnaire. Therefore,
it is far from clear that the Appeals Council was wrong, much
less egregiously mistaken.
B. Psychiatric Evaluation
The ALJ found that Roberson was able to function on a
regular and sustained basis in activities of daily living and in
concentration, persistence, pace, and stress reaction. In making
that finding, the ALJ relied on medical records from Dr. Moran
1Dr. Poliak met with Roberson in November of 2011 but
completed the guestionnaire on January 31, 2012. Dr. Poliak is
not mentioned in the Joint Statement of Material Facts, and the
administrative record does not appear to include his treatment
notes.
and Dr. Evans and on Roberson's own function report and hearing
testimony. The ALJ did not credit Dr. Hess's opinions,
concluding that they were not properly supported and were
contrary to other evidence in the record.2
Roberson included a psychiatric evaluation completed by Dr.
Rockhill with the new evidence submitted to the Appeals Council.
Roberson argues that Dr. Rockhill's evaluation supports Dr.
Hess's opinions and contradicts the ALJ's finding that
nonexertional limitations did not restrict her ability to
function. Therefore, Roberson asserts. Dr. Rockhill's evaluation
shows a reasonable probability of a different outcome.
As is explained above, to succeed in challenging the Appeals
Council's decision, Roberson must show that the decision to deny
review was egregiously mistaken. While Dr. Rockhill's evaluation
supports Roberson's view of her limitations, other evidence in
the record supports the ALJ's findings. Under these
circumstances, Roberson has not shown that the Appeals Council's
decision that the new evidence did not show a reasonable
probability of changing the ALJ's findings was egregiously
mistaken.
2Although Roberson argues that Dr. Hess's opinions should
have been credited over other evidence in the record, the issue
she raises for judicial review "concern[s] events subseguent to
the . . . hearing" and challenges the Appeals Council's decision,
not the ALJ's decision. Plaintiff's Mem., doc. 9, at 1.
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Conclusion
For the foregoing reasons, the plaintiff's motion to remand
(document no. 9) is denied. The defendant's motion to affirm
(document no. 11) is granted.
The Appeals Council's decision is affirmed. The clerk of
court shall enter judgment accordingly and close the case.
SO ORDERED.
•Joseph A. DiClerico, J r .
United States District Judge
January 22, 2014
cc: T. David Plourde, Esq.
David J. Strange, Esq.
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