Haskell v. SSA

                    UNITED STATES DISTRICT COURT
                      DISTRICT OF NEW HAMPSHIRE


Dennis Haskell

     v.                                      Civil No. 13-cv-482-JL
                                             Opinion No. 

Carolyn W. Colvyn, Acting Commissioner,
Social Security Administration


                           ORDER ON APPEAL

     Dennis Haskell has appealed the Social Security

Administration’s denial of his application for a period of

disability and disability insurance benefits, claiming an onset

date of January 1, 2010.   An administrative law judge at the SSA

(“ALJ”) ruled that, despite Haskell’s severe impairments (chronic

obstructive pulmonary disease, asthma, and alcohol abuse, among

others), he retains the residual functional capacity (“RFC”) to

perform jobs that exist in significant numbers in the national

economy, and, as a result, is not disabled.      See 

(a).    The Appeals Council later denied Haskell’s

request for review of the ALJ’s decision, see 

 § 404.968(a),

with the result that the ALJ’s decision became the final decision

on Haskell’s application, see id. § 404.981.       Haskell appealed

the decision to this court, which has jurisdiction under 

(g) (Social Security).

     Haskell has filed a motion to reverse the decision.      See

L.R. 9.1(b)(1).    He argues that the ALJ erred in finding that
Haskell retains the RFC for light work, particularly in light of

the contrary opinions of his treating physician.    Haskell further

argues that the Appeals Council erred by failing to consider the

fact that, between the time of the ALJ’s decision and the

Council’s refusal to review it, Haskell had reached the “advanced

age” of 55.   See 

(e).   The Commissioner of

the SSA has cross-moved for an order affirming these decisions,

see L.R. 9.1(d), arguing that neither the ALJ nor the Appeals

Council erred in handling Haskell’s case.    For the reasons

explained fully below, the court agrees with the Commissioner as

to the ALJ’s decision, and rules that it lacks jurisdiction to

consider the Appeals Council’s decision.


     RFC assessment.   As just noted, the ALJ determined that,

despite Haskell’s impairments, he retained the RFC for light

work, with specified non-exertional limitations.    Haskell argues

that this finding is “improperly based only on [the ALJ’s] lay

assessment of the medical evidence and the impermissible

substitution of his lay judgment for that of the medical expert,”

i.e., Haskell’s treating physician, Dr. Michael Mattin.    It is

generally true that “an ALJ, as a lay person is not qualified to

interpret raw data in a medical record.”     Manso-Pizarro v. Sec’y

of HHS, 

 (1st Cir. 1996).     Nevertheless, “where the

medical evidence shows relatively little physical impairment, an

                                 2
ALJ can permissibly render a commonsense judgment about

functional capacity even without a physician’s assessment” to

support it.   

   As fully explained below, this is such a case.

     It should be noted that, while Haskell asserts that Mattin

made an “explicit finding that [Haskell] is precluded from

performing light work,” that finding, as such, does not appear in

Mattin’s records.   In June 2012, Mattin completed a “medical

source statement of ability to do work-related activities” on a

form provided by the SSA.   On that form, Mattin checked boxes

indicating that Haskell was limited to occasionally lifting or

carrying less than ten pounds and standing or walking only 2

hours out of an 8-hour workday, and also needed to periodically

alternate sitting and standing to relieve pain and discomfort.

But even though the form provided a space for Mattin to explain

these findings--and specifically directed him to explain the

lifting and carrying limitations and the need to alternate

sitting and standing--he provided no such explanation, simply

leaving those spaces blank.   Mattin also checked boxes indicating

that Haskell could never climb, balance, crouch, or crawl, and

could only occasionally kneel or stoop but, again, those findings

are also unexplained by anything on the form.

     Unsurprisingly, then, the ALJ gave Mattin’s responses

“little weight because his opinion is a pro forma statement of



                                  3
[Haskell’s] functional limitations without any elaboration as to

what objective medical signs or symptoms led [Mattin] to conclude

that [Haskell] was limited in the manner [Mattin] articulated.”

This observation is right on the money, and flies in the face of

Haskell’s claim that the ALJ failed to “provide an adequate

reason for rejecting Dr. Mattis’ opinion.”       This court has

repeatedly ruled, in fact, that “[w]hen an opinion is given in

cursory fashion, the ALJ can properly give it less weight.”

McGrath v. Astrue, 

, 13 n.13 (citing 

(d)(3)); see also, e.g., Gaudette ex rel. D.P. v.

Colvin, 

; Morin v. Astrue, 

.

     Haskell, predictably, invokes the SSA’s rule as to the

deference generally due the opinion of a claimant’s treating

physician.   See 

(d)(2).       But that rule

applies only insofar as such an opinion is “well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [his] case record.”       

   Haskell does not point to

any support in the record for Mattin’s opinions as to Haskell’s

physical limitations--indeed, while his reply memorandum asserts

that these opinions are “supported by Dr. Mattin’s treatment

notes, as well as other evidence of record,” that statement is,




                                  4
tellingly, unaccompanied by any record citation.1    So the ALJ’s

decision to give little weight to Mattin’s opinions because they

lacked “elaboration as to what objective medical signs or

symptoms led [Mattin] to conclude that [Haskell] was limited in

the manner [Mattin] articulated” was both sufficiently supported

and sufficiently explained.    See, e.g., Carrion v. Colvin, 

 (upholding ALJ’s decision to reject treating

physician’s opinions as unsupported when claimant failed to point

to any support in physician’s notes or elsewhere).

     For essentially the same reason, the ALJ did not err in

finding that Haskell retained the RFC for light work, even in the

absence of a supporting medical source opinion.     Again, an ALJ

can rely solely on his own common-sense judgment about the

claimant’s RFC so long as “the medical evidence shows relatively

little physical impairment.”    Manso-Pizarro, 

.

Here, as just discussed, nothing in Haskell’s medical records


     1
     Haskell emphasizes his testimony before the ALJ that he
“experiences shortness of breath from sitting too long” and
“excessive standing or walking exacerbates his pain.” But the
ALJ specifically found that Haskell’s “statements concerning the
intensity, persistence and limiting effects of [his] symptoms are
not credible to the extent they are inconsistent with” the ALJ’s
RFC assessment, and, furthermore, that Haskell’s “allegations of
work-related functional limitations . . . [were] somewhat
overstated.” Haskell does not suggest that these conclusions
were in error and, obviously, a claimant’s discredited testimony
as to his limitations cannot save his treating physician’s
otherwise unsupported opinions as to those limitations. See,
e.g., Allard v. Colvin, 

.

                                  5
(aside from the unexplained conclusions that Mattin expressed in

filling out the form) suggests a meaningful exertional problem.

     To the contrary, Mattin’s notes of his examinations of

Haskell throughout 2010 (after he claims to have become disabled

on January 1 of that year) report that he had been “exercising”

or “working around the house” and do not refer to any physical

limitations.   It was not until September 2011--more than 19

months after the claimed onset of his disability, and nearly 5

months after he had applied for disability benefits--that Haskell

reported shortness of breath (or any other exertional problem) to

Mattin (or any medical professional).   Haskell went on to make

the same complaint just three more times:   at a medical

appointment in June 2011, when a nurse practitioner attributed it

to a bout of bronchitis; at his annual physical in September

2011, when he also complained (for the first time, so far as the

record indicates) of joint pain, back pain, stiffness, poor

balance, and disturbed coordination, but also said he had been

exercising and mentioned that he was “working on getting

disability”; and at a visit to Mattin in April 2012.   But neither

these reports, nor anything else in Haskell’s records save

Mattin’s June 2012 functional assessment, mentions any other

physical limitation.




                                 6
     The medical evidence, then, “shows relatively little

physical impairment,” allowing the ALJ to “render a commonsense

judgment about functional capacity even without a physician’s

assessment.”   Manso-Pizarro, 

.    Indeed, applying

this rule, the Court of Appeals has upheld an ALJ’s assessment of

a claimant’s RFC under similar circumstances.    See Roberts v.

Barnhart, 67 Fed. App’x 621, 624 (1st Cir. 2003) (affirming ALJ’s

decision “that an expert was not required for evaluation of

claimant’s physical RFC,” despite her undisputed diagnosis with a

disorder causing joint pain and testimony about its disabling

effects, where “the record indicates very few complaints of joint

pain”); Stephens v. Barnhart, 50 Fed. App’x 7, 10-11 (1st Cir.

2002) (upholding ALJ’s finding that claimant “was capable of

lifting up to fifty pounds despite an examining physician’s RFC

evaluation” to the contrary, and the absence of any competing

evaluation, where the physician’s “report provides no explanation

for [its] low estimation of [claimant’s] capacity to lift” and

the medical record lacked any other “comment on [claimant’s]

ability to lift”).   Thus, while Manso-Pizarro recognizes but a

“narrow exception to the general rule that an expert opinion is

required” to determine the claimant’s RFC, Jenna v. Colvin, 

, that exception applies here.




                                 7
     Haskell offers no reason why it should not--aside from a

single statement in his reply brief that his “severe impairments

were not the kind that would allow the ALJ, as a layperson, to

craft an RFC on his own.”   But, as this court has explained, the

fact that an impairment is severe does not in and of itself make

it disabling, see Eaton v. Astrue, 

 (citing

Foster v. Brown, 

 (6th Cir. 1988)), so, as

cases like Roberts and Stephens indicate, the existence of a

severe impairment does not in and of itself prevent the ALJ from

determining the claimant’s RFC without a supporting medical

assessment.   Cf. Hunter v. Barnhart, 56 Fed. App’x 262, 265-66

(7th Cir. 2003) (affirming ALJ’s decision accepting physician’s

diagnosis of claimant with COPD, but rejecting physician’s

restriction of claimant to sedentary work, given absence of

support in medical records).   Again, that is appropriate so long

as the medical evidence shows relatively little physical

impairment, as it does here.

     Haskell also complains that “the ALJ failed to provide any

specific rationale explaining why [Haskell] retains the RFC to

perform light work.”   But the ALJ expressly stated that his RFC

assessment was “in accord with,” among other things, Haskell’s

“previous ability to work at gainful levels even with his

impairments”--which, the ALJ observed, “were present at



                                 8
approximately the same level of severity since at least 2005” and

included stints as a plumber, a forklift operator, and a manual

laborer.   The ALJ also cited Haskell’s “continuing to search for

employment and having collected unemployment compensation”

(which, as the ALJ noted, required Haskell to affirm that he was

“ready, willing and able to work”) and his “continued smoking of

cigarettes and marijuana” despite his respiratory conditions.

     Haskell does not question any of this reasoning.   So, while

perhaps none of the ALJ’s observations, taken alone, could have

supported the finding that Haskell could do light work, they

provide substantial evidence for that conclusion when taken

together--particularly in light of the dearth of references to

exertional limitations in Haskell’s medical records, as just

discussed at length.    See, e.g., Bergeron v. Astrue, 

 (affirming ALJ’s RFC determination, despite the

absence of a supporting medical opinion “in specific functional

terms,” in light of claimant’s “relatively normal” medical

records and other evidence of her capabilities).   Because Haskell

has failed to identify any error in the ALJ’s RFC determination,

his motion to reverse the ALJ’s decision is denied.


     Appeals Council.    Haskell also argues that the Appeals

Council erred by failing to treat him as a “[p]erson of advanced

age,” defined as “age 55 or older,” 

(e), even

                                  9
though he celebrated his 55th birthday between the date of the

ALJ’s decision and the date of the Appeals Council’s denial of

Haskell’s request to review it.    The recognition that he had

reached advanced age, Haskell argues, would have resulted in a

presumption that he was disabled under the SSA’s Medical-

Vocational Guidelines.   See 20 C.F.R. pt. 404, subpt. B, app. 2.

At a minimum, Haskell maintains, the Appeals Council should have

considered whether his age (which was about 54½ at the time he

asked for review) placed him in a “borderline situation”

requiring the Council to “consider whether to use the older age

category [i.e., advanced age] after evaluating the overall impact

of all the factors of [his] case.”2    

 § 404.1563(b).

     This court lacks jurisdiction to hear this claim.      As the

Court of Appeals has recognized, “an Appeals Council decision

refusing review has all the hallmarks of a discretionary

decision” which is, as a matter of administrative law, only

“reviewable to the extent that it rests on an explicit mistake of

law or other egregious error,” i.e., “an articulated but severely

mistaken view.”   Mills v. Apfel, 

 (1st Cir. 2001).

Here--per its customary practice, see id.--the Appeals Council




     2
     Importantly, Haskell does not contend that the ALJ erred by
failing to apply the “borderline situation” rule (at the time of
the hearing, Haskell had just turned 54).

                                  10
did not articulate any reason for declining Haskell’s request

that it review the ALJ’s decision.

     This is in contrast to Mills, where the Council announced

that medical records the claimant had submitted to it, but not to

the ALJ, were “‘consistent’ with those in the record before the

ALJ and ‘thus’ did not provide a basis for disturbing the ALJ’s

decision.”   

.   Accordingly, the Court of Appeals reasoned

that “if the Appeals Council mistakenly rejected new evidence on

the ground that it was not material, . . . a court ought to be

able to correct that mistake.”    

.   Crucially, the court

explained that “[t]his is so even though we assume that the

Appeals Council’s refusal to review would be effectively

unreviewable if no reason were given for the refusal.”     

     Here, again, the Appeals Council gave no specific reason for

its refusal of Haskell’s request for review the ALJ’s decision,

stating simply that “the reasons [Haskell] disagree[s] with the

decision . . . do[] not provide a basis for changing” it.    In

seeking review, Haskell likewise gave no specific reason for

disagreeing with the ALJ’s decision, stating simply that “there

are multiple errors by the [ALJ] which require a remand.”

Haskell also never asked the Appeals Council to apply the

“borderline situation” rule or otherwise made an issue of his age

(and, again, he has never argued at that the ALJ should have



                                 11
applied the “borderline situation” rule, see note 2, supra).

This state of affairs makes the Appeals Council’s refusal to

review the ALJ’s decision “effectively unreviewable” by this

court.      Mills, 

.


      Conclusion.     For the foregoing reasons, Haskell’s motion to

reverse the ALJ’s decision3 is DENIED and the Commissioner’s

motion to affirm the ALJ’s decision4 is GRANTED.       The clerk shall

enter judgment accordingly and close the case.


              SO ORDERED.




                                    Joseph N. Laplante
                                    United States District Judge

Dated: February 2, 2015

cc:   Tamara N. Gallagher, Esq.
      Karen B. Fitzmaurice, Esq.
      T. David Plourde, AUSA




      3
          Document no. 9.
      4
          Document no. 12.

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