UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Matthew Chigas
v. Civil No. 15-cv-457-LM
Opinion No. 2016 DNH 094
Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Matthew Chigas moves to
reverse the Acting Commissioner’s decision to deny his
applications for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act,
42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI,
42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, this matter is remanded to the Acting Commissioner for
further proceedings consistent with this order.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also
42 U.S.C. § 1383(c)(3) (establishing §
405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [Acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson,
490 U.S. 877, 885 (1989)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 11, is part of the court’s
record and will be summarized here, rather than repeated in
full.
Chigas stopped working in January of 2004. His last job
was as a truck mechanic.
Chigas has an extensive record of seeking medical
treatment, typically in hospital emergency rooms, for back pain
and headaches. He was last insured for DIB on March 31, 2009.
In September of 2011, he applied for both DIB and SSI, claiming
August 14, 2008, as the onset date of his disability.
2
The Disability Determination Explanation (“DDE”) form
associated with Chigas’s claim for DIB notes that “[t]here is no
indication that there is [any] medical or other opinion
evidence.” Administrative Transcript (hereinafter “Tr.”) 111.
That form also observes that “[n]o RFC . . . assessments are
associated with this claim.”1 Id. The DDE form concludes with
the following Personalized Decision Notice (“PDN”):
In order to be entitled for benefits, your condition
must be found to be severe prior to 03/31/2009, when
you were last insured for disability benefits. The
evidence in file is not sufficient to fully evaluate
your claim and the evidence needed cannot be obtained.
We have determined your condition was not disabling on
any date through 03/31/2009, when you were last
insured for disability benefits. In deciding this, we
considered the medical records, your statements, and
how your condition affected your ability to work.
Tr. 112.
Like the DDE form associated with Chigas’s claim for DIB,
the DDE form associated with his SSI claim notes that “[t]here
is no indication that there is medical or other opinion
evidence,” Tr. 111, and that “[n]o RFC . . . assessments are
associated with this claim,” id.
After the Social Security Administration denied Chigas’s
applications for DIB and SSI, he received a hearing before an
1 “RFC” stands for “residual functional capacity,” which is
a term of art that means “the most [a claimant] can still do
despite [his] limitations.” 20 C.F.R. §§ 404.1545(a)(1) &
416.945(a)(1).
3
Administrative Law Judge (“ALJ”). The ALJ took testimony from a
medical expert, Dr. Bruce Witkind. Dr. Witkind testified that
neither Chigas’s back condition nor his headaches qualified as
disabling impairments under the applicable regulations. With
regard to any limitations resulting from Chigas’s impairments,
Dr. Witkind had this to say:
I’m not able to identify any limitations. If one
wants to be cautious, there [are] some marginal
changes on the MRI. If you want to be cautious, you
might put him at a medium level of work maximum, which
would be 50-pound maximum lifting, pushing, pulling,
carrying on an occasional basis, with a maximum of 25
pounds lifting, pushing, pulling and carrying on a
frequent basis. There will not be any other
restrictions. For example, with regards to
manipulation of the hands or feet or climbing stairs,
he probably would not be able to climb ropes or
scaffolds.
Tr. 46-47.
The ALJ issued a decision that includes the following
relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairments:
headaches and degenerative disc disease (20 CFR
404.1520(c) and 416.920(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Supbart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
. . . .
4
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except he
should never climb ladders, ropes, or scaffolds.
. . . .
6. The claimant is able to perform past relevant work
as a mechanic as generally performed (20 CFR 404.1565
and 416.965).
Tr. 25, 26, 29.
After the ALJ issued his unfavorable decision, Chigas filed
a request for review with the Appeals Council. While his appeal
was pending, Chigas submitted additional evidence to the Appeals
Council in the form of a “Headaches Medical Source Statement”
and a “Headaches Residual Functional Capacity Questionnaire,”
both filled out by Dr. Philip Savia.
In his RFC Questionnaire, Dr. Savia stated that Chigas’s
headaches first became severe on September 25, 2013, and that he
had been seeing Chigas about once a month since that date. In
his Medical Source Statement (“MSS”), Dr. Savia indicated that
Chigas’s headaches had lasted, or could be expected to last, at
least 12 months. Returning to the RFC Questionnaire, Dr. Savia
indicated a diagnosis of chronic migraine headaches, occurring
daily. When asked whether Chigas would need to take unscheduled
breaks during an eight-hour work day, Dr. Savia stated that the
question was not applicable because Chigas was not working. He
5
did, however, opine that Chigas was incapable of low stress
jobs, and would be absent from work more than four days per
month due to his headaches or treatment for them.2
The Appeals Counsel received Chigas’s new evidence and
responded to it this way:
We also looked at the Headaches Medical Source
Statement and Headaches Residual Functional Capacity
Questionnaire completed by Dr. Savia dated March 19,
2015. The Administrative Law Judge decided your case
through June 26, 2014. This new information is about
a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on
or before June 26, 2014.
Tr. 2. Ultimately, the Appeals Council denied Chigas’s appeal.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(E). To be eligible
for supplemental security income, a person must be aged, blind,
or disabled, and must meet certain requirements pertaining to
income and assets.
42 U.S.C. § 1382(a). The questions in this
2 He gave the same opinions in his MSS and further opined
that when Chigas had a headache, he “would . . . generally be
precluded from performing even basic work activities and [would]
need a break from the workplace.” Tr. 10.
6
case are whether Chigas was: (1) under a disability from August
14, 2008, through June 26, 2014, which would entitle him to SSI;
or (2) under a disability from August 14, 2008, through March
31, 2009, which would entitle him to DIB.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step process. See 20 C.F.R. §§
404.1520 (DIB) and 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v.
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker,
530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
7
[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability
as supported by the testimony of the [claimant] or
other witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS,
797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS,
690
F.2d 5, 6 (1st Cir. 1982)).
B. Chigas’s Claims
Chigas claims that the Appeals Council erred by failing to
consider the evidence he submitted after the ALJ rendered his
decision. He also claims that the ALJ erred by: (1)
determining, at step three, that his degenerative disc disease
did not meet or equal the severity of a listed impairment; and
(2) failing to properly weigh the medical opinions when
determining his RFC. Chigas’s first argument is persuasive, and
dispositive.
The manner in which the Appeals Council is to consider
evidence submitted after an ALJ renders a decision is described
in the following regulation:
If new and material evidence is submitted, the
Appeals Council shall consider the additional evidence
only where it relates to the period on or before the
date of the administrative law judge hearing decision.
The Appeals Council shall evaluate the entire record
including the new and material evidence submitted if
it relates to the period on or before the date of the
administrative law judge hearing decision. It will
8
then review the case if it finds that the
administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence
currently of record.
20 C.F.R. §§ 404.970(b) & 416.1470(b). The court of appeals has
“assume[d] that the Appeals Council’s refusal to review [is]
effectively unreviewable if no reason [is] given for the
refusal.” Mills v. Apfel,
244 F.3d 1, 6 (1st Cir. 2001). On
the other hand, however, “an Appeals Council refusal to review
the ALJ may be reviewable where it gives an egregiously mistaken
ground for this action,”
id. at 5. That is what happened in
this case.
Typically, when the Appeals Council declines to review an
ALJ’s decision in the face of newly submitted evidence, it
explains its decision in terms of the weight or materiality of
the new evidence. See, e.g., Mills, 244 F.3d at 6; Saenz v.
Colvin,
61 F. Supp. 3d 195, 204-06 (D. Mass. 2014). Here, by
contrast, the Appeals Council declined to review the ALJ’s
decision based upon its determination that the new evidence
pertained to a time period after the date of the ALJ’s decision,
i.e., June 26, 2014. That was an egregious mistake.
On the top of the first page of Dr. Savia’s RFC
Questionnaire, he indicated that Chigas’s impairment was severe
as of September 25, 2013, approximately nine months before the
ALJ’s decision. The Acting Commissioner argues that Chigas
9
erroneously characterizes the Questionnaire as retrospective,
suggesting that Chigas places inappropriate weight on Dr.
Savia’s statements about the frequency and length of his
treatment relationship. But, the Acting Commissioner ignores
Dr. Savia’s express statement about Chigas’s condition in
September of 2013. That statement is plainly retrospective, and
the fact that Dr. Savia also made statements about Chigas’s
condition after the date of the ALJ’s decision does nothing to
undermine the retrospective character of his 2015 statement
about Chigas’s condition in 2013. Thus, this case stands apart
from those on which the Acting Commissioner relies, where the
evidence the Appeals Council declined to consider had no
retrospective quality. See, e.g., Deblois v. Sec’y of HHS, 686
F.2d 76, 80 (1st Cir. 1982); Whitehead v. Astrue, Civ. No. 11-
11292-RWZ,
2012 WL 5921045, at *6 (D. Mass. Nov. 26, 2012);
Miller ex rel. K.M. v. Astrue, Civ. No. 2009-12018-RBC,
2011 WL
2462473, at *14 (D. Mass. June 16, 2001).
Finally, after characterizing Dr. Witkind’s hearing
testimony as supportive of the ALJ’s decision, the Acting
Commissioner argues that
even if the March 2015 assessment is favorable to
[Chigas], record evidence that was actually before the
ALJ at the time of the decision supports his findings,
and Plaintiff therefore has not shown that the Appeals
Council was egregiously mistaken by finding that the
10
March 2015 assessment did not provide a basis for
changing the ALJ’s decision.
Doc. no. 9-1, at 9. In support of that argument, the Acting
Commissioner cites Roberson v. Colvin, No. 13-cv-265-JD, 2014 WL
243244 (D.N.H. Jan. 22, 2014). In Roberson, “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.” Id. at *3. Here, the Appeals
Council did no such thing; it declined even to perform the
analysis described in Roberson on grounds that Chigas’s new
evidence did not pertain to the appropriate time period. In
other words, Roberson does not apply to the circumstances of
this case. More importantly, while the Acting Commissioner now
argues that Chigas’s new evidence was not reasonably likely to
have caused the ALJ to reach a different decision, the Appeals
Council did not say that, and the court is not inclined to
affirm the Appeals Council under a rationale that the Appeals
Council did not articulate itself. Cf. Gilbert v. Colvin, No.
14-cv-553-LM,
2015 WL 3755118, at *6 (D.N.H. June 16, 2015) (“it
is not for the Acting Commissioner to make arguments in support
of the ALJ’s decision that the ALJ did not make”) (citing Gurney
v. Soc. Sec. Admin. Comm’r,
880 F. Supp. 2d 174, 178 (D. Me.
2012); Fortin v. Astrue, No. 10-cv-441-JL,
2011 WL 2295171, at
11
*8 (D.N.H. May 18, 2011), R. & R. adopted by 2011 WL 2224771
(D.N.H. June 7, 2011)).
Because the Appeals Council committed an egregious mistake
by determining that Chigas’s new evidence pertained exclusively
to a time after the ALJ’s decision, this case must be remanded.
Accordingly, the court need not reach Chigas’s other claims of
error.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 9, is denied, and
Chigas’s motion to reverse that decision, document no. 7, is
granted to the extent that the case is remanded to the Acting
Commissioner for further proceedings, pursuant to sentence four
of 42 U.S.C. § 405(g). The clerk of the court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 6, 2016
cc: Brenda M. Golden Hillisey, Esq.
T. David Plourde, Esq.
12
