Huse v. SSA CV-13-117-JL 3/20/14
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael David Huse, Jr.
v. Crvrl No. 13-CV-117-JL
Opinion No. 2014 DNH 059
Carolyn W. Colvin,
Commissioner, Social Security
Administration
ORDER ON APPEAL
Michael David Huse, Jr. has appealed the Social Security
Administration's denial of his application for Disability
Insurance Benefits ("DIB") for the period extending beyond July
3, 2008. An administrative law judge at the SSA ("ALJ") ruled
that Huse's severe impairments (degenerative disc disease of the
lumbar spine, depressive disorder, and anxiety disorder with
panic attacks) left him unable to perform any full-time work on a
regular and continuing basis between April 1, 2005 and July 3,
2008, entitling him to benefits for that closed period. But the
ALJ also ruled that Huse thereafter experienced an improvement in
his medical condition that was related to his ability to work,
because it resulted in an increase to his residual functional
capacity ("RFC"). See 20 C.F.R. §§ 404.1594(b)(1), (b)(3).
Specifically, the ALJ found that, as of July 4, 2009, Huse could
do sedentary work with just a few limitations, enabling him to
perform jobs existing in significant numbers in the national
economy--with the result that, as of July 4, 2008, he was no
longer disabled. See i d . § 404.1594(f)(9).
The Appeals Council later "found no reason under [its] rules
to assume jurisdiction" over Huse's appeal from the ALJ's
decision, see i d . § 404.968(a), with the result that it became
the SSA's final decision on Huse's application, see i d .
§ 404.981. Huse appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Huse has filed a motion to reverse the decision, see L.R.
9.1(b)(1), arguing, among other things, that the ALJ lacked
substantial evidence to support his ruling that Huse had
experienced a medical improvement related to his ability to work.
"Medical improvement is related to [a claimant's] ability to work
if there has been a decrease in the severity . . . of the
impairment present at the time of the most recent favorable
medical decision and an increase in [the claimant's] functional
capacity," 20 C.F.R. § 404.1594(b)(3), which measures the
claimant's ability to engage in substantial gainful activity,
id.
§ 404.1594(b) (5) . "Even where medical improvement related to
[the claimant's] ability to work has occurred . . . , [the
Commissioner] must also show that [the claimant is] currently
able to engage in substantial gainful activity before [the
Commissioner] can find [the claimant] is no longer disabled."
2
I d . § 404.1594(a). The result of this framework, as Huse points
out, is that "[u]nder the medical improvement standard, the
government must, in all respects, prove that the person is no
longer disabled." Waters v. Barnhart, 276 F.3d 716, 718 (5th
C i r . 2 0 02) .1
In concluding that Huse was no longer disabled because, as
of July 4, 2008, he had experienced a medical improvement related
to his ability to work, the ALJ gave substantial weight to the
opinions of Dr. Charles Header, a physician who (without
examining Huse) completed a physical RFC assessment on August 21,
2008. In relevant part. Header found that Huse could sit for
about six hours out of eight in a workday and that, even
accounting for his pain, weakness, and deconditioning, Huse could
1Some courts have held that the "medical improvement"
standard applies only where there has been "a previous decision
in favor of disability, followed by the claimant's receipt of
benefits, further followed by a new proceeding resulting in
cessation or termination on the ground of medical improvement,"
as opposed to a case like this one, where the SSA awards a closed
period of disability. Camp v. Heckler, 780 F.2d 721, 722 (8th
Cir. 1986). But our Court of Appeals has not considered the
question and, as Waters recognized, several courts of appeals
have come to the contrary conclusion, holding that the medical
improvement standard applies to awards of closed periods of
disability.
276 F.3d at 718-19 (citing and adopting cases) . In
any event, the ALJ here applied the medical improvement standard,
and the Commissioner, in her motion, argues that the ALJ was
correct to do so. Accordingly, this court will review the ALJ's
application of the medical improvement standard, despite the
unsettled question of whether that standard even applies to a
decision awarding a closed period of disability.
3
attend at least six hours out of eight in a workday. Based
expressly on this assessment, the ALJ found that, as of July 4,
2008, Huse had the RFC to perform sedentary work, see 20 C.F.R.
§ 404.1567(a), albeit subject to certain non-exertional
limitations (no more than simple tasks, no interaction with the
general public, and only limited interaction with co-workers).
The problem with this reasoning, as Huse points out, is that
RFC is the individual's maximum remaining ability to do
sustained work activities on a regular and continuing
basis, and the RFC assessment must include a discussion
of the individual's abilities on that basis. A
"regular and continuing basis" means 8 hours a day, for
5 days a week, or an equivalent work schedule.
SSR 96-8p, Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 374184, at *2 (S.S.A. July 2,
1996) (emphasis and footnote omitted). Here, as just noted,
Header opined only that Huse could attend at least six hours out
of eight in a workday--not at least eight hours a day, or an
equivalent work schedule. Header's opinion, then, does not
support the ALJ's finding that, as of July 4, 2008, Huse had the
RFC necessary to perform sedentary work. Indeed, "[u]nder the
applicable guidelines, an individual who is unable to work a
40-hour workweek is considered disabled." Hitchell v. Astrue,
2012 DNH 054, 15-16 (citing SSR 96-8p,
1996 WL 374184, at *2 )
(Barbadoro, J.); see also Dubois v. Astrue,
2012 DNH 109, 11
(Laplante, J.).
4
In defending the ALJ's decision, the Commissioner does not
identify anything else in the record to support the finding that,
as of July 4, 2008, Huse was capable of full-time sedentary work.
Instead, the Commissioner argues that the ALJ "reasonably found"
that Header's opinion that Huse "could 'attend at least 6 hours
out of an 8 hour workday'" was "consistent with a finding that
[he] had the ability to sustain full-time sedentary work for
eight hours per day, five days per week, or an equivalent work
schedule." But whether Header's opinion can be construed as
"consistent with" the ALJ's RFC finding is not the issue. The
issue is whether Header's opinion amounts to substantial evidence
supporting the ALJ's RFC finding--because, again, the burden was
on the Commissioner, not Huse, to show that, by July 4, 2008, he
had recovered the RFC to perform substantial gainful activity.
See 20 C.F.R. § 404.1594(a). Header's opinion that Huse could
attend at least 6 hours out of 8 in a workday could not have
satisfied that burden, because, again, a claimant lacks the RFC
to do work at any exertional level unless he or she can work at
least 8 hours a day for 5 days a week or the equivalent. See SSR
96-8p,
1996 WL 374184, at * 2 . The record is simply bereft of
medical evidence that--as of July 4, 2009 or any subsequent
point--Huse had the ability to do so.
5
So the ALJ's decision must be vacated insofar as he found
that, as of July 4, 2008, Huse had the ability to do sedentary
work with specified non-exertional limitations.2 Accordingly,
Huse's motion to reverse the ALJ's decision (document no. 8) is
GRANTED, and the Commissioner's motion to affirm the ALJ's
decision (document no. 11) is DENIED. The case is remanded for
further consideration of Huse's RFC after July 3, 2009 in light
of this order. See 42 U.S.C. § 405(g). The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Joseph N. naprante
United States District Judge
Dated: March 20, 2014
cc: Raymond J. Kelly, Esq.
T. David Plourde, AUSA
2Huse challenges that finding on other grounds, including
that the ALJ erroneously gave Meader's opinions more weight than
those of a physical therapist who had examined Huse, and found
Huse's claims of disabling symptoms less than fully credible.
Because, regardless of the weight they (or Huse's claims) could
have properly been given. Header's opinions failed to show that
Huse regained the RFC for sedentary work as of July 4, 2009, the
court need not consider Huse's additional arguments.
6
