Torrey v . SSA CV-03-293-M 01/21/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen M . Torrey, Claimant

v. Civil N o . 03-293-M Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration, Respondent

O R D E R

Pursuant to

(g), claimant, Karen Torrey,

challenges the Commissioner’s decision denying her application

for Supplemental Security Income Payments under Title XVI of the

Social Security Act,

(the “Act”). Respondent

objects and moves for an order affirming her decision.

For the reasons set forth below, the matter is remanded to

the Administrative Law Judge (“ALJ”) for further proceedings

consistent with this opinion. Factual Background

I. Procedural History.

In May of 2001, claimant filed an application for

supplemental security income payments, alleging that she had been

unable to work since May 2 2 , 2001, due to degenerative disc

disease, arthritis, asthma, depression, and a learning

disability. The Social Security Administration denied her

application. That denial of benefits permitted claimant to

immediately request a hearing before an ALJ, which she did.

Accordingly, on July 2 4 , 2002, claimant, her attorney, and a

vocational expert appeared before an ALJ who considered her

claims de novo.

The ALJ issued his order on December 3 , 2002, concluding

that claimant was subject to some exertional and non-exertional

limitations and incapable of returning to her past relevant work.

Nevertheless, the ALJ concluded that claimant was able to perform

work that exists in significant numbers in the national economy

and was not, therefore, disabled. The Appeals Council denied

claimant’s request for review, thereby rendering the ALJ’s

decision the final decision of the Commissioner.

2 In response, claimant filed this timely action, asserting

that the ALJ’s decision is not supported by substantial evidence.

She then filed a “Motion for Order Reversing the Decision of the

Commissioner” (document n o . 4 ) . 1 The Commissioner objected and

filed a “Motion for Order Affirming the Decision of the

Commissioner” (document n o . 5 ) . Those motions are pending.

II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court’s record (document n o . 6 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Factual Findings by the ALJ are Entitled to Deference.

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

1 Although captioned as a motion to reverse the decision of the Commissioner, claimant actually moves the court to remand this matter to the ALJ for further inquiry into her residual functional capacity. See Claimant’s memorandum at 5 .

3 judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See

(c)(3); Irlanda Ortiz v . Secretary of Health & Human

Services,

(1st Cir. 1991). 2

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts.” Irlanda Ortiz,

.

Accordingly, the court will give deference to the ALJ’s

credibility determinations, particularly where those

2 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB,

9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n.,

0 7 , 620 (1966).

4 determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services,

9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

II. The Parties’ Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is “unable to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than twelve months.” 42 U.S.C.

§ 1382c(a)(3). The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert,

3 7 , 146-47 (1987); Santiago v .

Secretary of Health & Human Services,

, 5 (1st Cir.

1991). To satisfy that burden, the claimant must prove that her

impairment prevents her from performing her former type of work.

See Gray v . Heckler,

(1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services,

, 7

(1st Cir. 1982)). Nevertheless, the claimant is not required to

5 establish a doubt-free claim. The initial burden is satisfied by

the usual civil standard: a “preponderance of the evidence.” See

Paone v . Schweiker,

0 8 , 810-11 (D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective assertions of pain

and disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v . Secretary of

Health & Human Services,

9 , 23 (1st Cir. 1986);

Goodermote,

. Provided the claimant has shown an

inability to perform her previous work, the burden shifts to the

Commissioner to show that there are other jobs in the national

economy that she can perform. See Vazquez v . Secretary of Health

& Human Services,

, 2 (1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger,

(1st Cir. 1974); Benko v . Schweiker,

9 8 ,

701 (D.N.H. 1982).

6 When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents the claimant from performing past relevant work; and

(5) whether the impairment prevents the claimant from doing any other work.

. Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

7 With those principles in mind, the court reviews claimant’s

motion to remand this proceeding to the ALJ and the

Commissioner’s motion to affirm the determination that claimant

is not disabled.

Discussion

I. Background - The ALJ’s Findings.

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since March

2 2 , 2001 (her alleged onset of disability). Next, the ALJ

determined that the medical evidence of record indicates that

claimant does suffer an impairment or combination of impairments

considered to be “severe” under the pertinent regulations -

specifically, a cardiac condition and asthma. Nevertheless, he

concluded that claimant possesses a residual functional capacity

(“RFC”) that permits her to perform a range of light work,

provided she is permitted to alternate between a seated and

standing position and assigned to perform non-complex tasks.

8 Additionally, due to her non-exertional limitations, she must

avoid concentrated dust and/or fumes and poor ventilation and is

modestly limited in her ability to get along well with co-workers

and to respond appropriately to criticism.

In light of those restrictions on claimant’s ability to

work, the ALJ determined that she could not return to any of her

past relevant occupations. Nevertheless, he concluded that

claimant did have the RFC to perform a significant range of light

work that is available in substantial numbers in the national

economy. Accordingly, at step five of the sequential analysis,

the ALJ determined that claimant was not “disabled,” within the

meaning of the Act.

II. Claimant’s Assertion of Error.

In her motion seeking an order remanding this proceeding to

the ALJ, claimant says the ALJ erred by “failing to consult with

a medical expert where the record was devoid of any analysis of

functional capacity by a physician or other expert.” Claimant’s

memorandum at 4 . Specifically, claimant says the ALJ “relied

upon a physical residual functional capacity assessment rendered

9 by Linda Ellsworth, a claim adjudicator at Disability

Determination Services,”

a person who, according to

claimant, is not an “acceptable medical source” under the

pertinent regulations.

The Commissioner, on the other hand, says the ALJ’s

determination of claimant’s RFC is entirely consistent with the

medical evidence of record and the reports prepared by claimant’s

various treating (and non-treating) professionals. Consequently,

the Commissioner asserts that, under the circumstances presented

in this case, the ALJ did not “overstep his bounds as a lay

person [by] render[ing] a judgment on the raw medical data.”

Commissioner’s memorandum at 6. On this record, and in light of

the ALJ’s written decision, the court cannot agree.

Claimant rests her motion to remand largely upon language

quoted from an opinion issued by the United States District Court

for the District of Massachusetts, in which the court noted:

“Where an ALJ reaches conclusions about claimant’s physical exertional capacity without any assessment of RFC by a physician, the ALJ’s conclusions are not supported by substantial evidence and it is necessary

10 to remand for the taking of further fuctiona[l] evidence.”

Brown v . Chater,

0 , 16 (D. Mass. 1996) (quoting

Perez v . Secretary of Health & Human Services,

(1st Cir. 1991)). As further support for her argument, claimant

points to a more recent opinion from the Court of Appeals, in

which the court observed that, “[w]ith few exceptions (not

relevant here), an ALJ, as a lay person, is not qualified to

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

Secretary of Health & Human Services,

5 , 17 (1st Cir.

1996) (citing Perez,

4 6 ) . That court went on to

observe that:

Of course, where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician’s assessment. But when, as now, a claimant has sufficiently put her functional inability to perform her prior work in issue, the ALJ must measure the claimant’s capabilities, and to make that measurement, an expert’s RFC evaluation is ordinarily essential unless the extent of functional loss, and its effect on job performance, would be apparent even to a lay person.

Manso-Pizarro,

(citations and internal punctuation

omitted). Ultimately, the court concluded that if the record

11 evidence “suggests a relatively mild physical impairment posing,

to the layperson’s eye, no significant exertional restrictions,

then [the court] must uphold the ALJ’s finding [of no

disability]; elsewise, we cannot (in the absence of an expert’s

opinion).”

.

III. The ALJ’s Decision and the Record Evidence.

A claimant’s residual functional capacity, or RFC,

represents “an assessment of an individual’s ability to do

sustained work-related physical and mental activities in a work

setting on a regular and continuing bases. A ‘regular and

continuing basis’ means 8 hours a day, for 5 days a week, or an

equivalent work schedule.” Social Security Ruling (“SSR”) 96-8p,

Policy Interpretation Ruling Titles II and XVI: Assessing

Residual Functional Capacity in Initial Claims,

at

*1 (July 2 , 1986). A claimant’s RFC is determined based upon a

review of “all of the relevant evidence in the case record,

including information about the individual’s symptoms and any

‘medical source statements’ - i.e., opinions about what the

individual can still do despite his or her impairment(s) -

12 submitted by an individual’s treating source or other acceptable

medical sources.”

at * 2 . See also

.

When determining a claimant’s functional capacity, an ALJ

must consider, among other things:

medical history, medical signs and laboratory findings, the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication), reports of daily activities, lay evidence, recorded observations, medical source statements, effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment, evidence from attempts to work, need for a structured living environment, and work evaluations, if available.

SSR 96-8p,

at * 5 . And, importantly, the ALJ’s

decision must include a discussion describing how he or she

actually determined the claimant’s RFC and the evidence upon

which he or she relied.

The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC the adjudicator must discuss the individual’s ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis . . . . The

13 adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.

Id. at *7 (emphasis supplied).

Here, although the ALJ’s opinion correctly identifies the

relevant factors that must be considered, it fails to discuss

those factors or explain how they support his ultimate

conclusion. There i s , for example, no discussion of claimant’s

activities of daily living. Nor is there any mention of the

effect upon claimant’s ability to perform work-related tasks by

the symptoms reasonably attributed to her impairments. In fact,

although the ALJ appears to have (implicitly) adopted the

findings set forth in the physical residual functional capacity

assessment prepared by M s . Ellsworth, that report is not

discussed (or even mentioned) in the ALJ’s decision.

Given the fact that none of claimant’s treating physicians

expressed an opinion as to her functional capacity and in light

of the ALJ’s failure to discuss the other factors relevant to

that inquiry, the most sensible approach is to remand this matter

to the ALJ for further findings and likely a physical residual

14 functional capacity assessment, completed by one (or more) of

claimant’s treating sources.

Conclusion

There i s , to be sure, evidence in the record which suggests

that claimant i s , as one of her treating physicians observed,

“not motivated to get better.” Transcript at 233. There is also

some suggestion, based upon the results of her personality

testing, that she may be “exaggerating her symptoms for secondary

gain.” Id. at 187. Alternatively, however, it is possible that

she is “in such distress that she is using the [personality] test

as a ‘cry for help,’ to emphasize how much psychological pain she

is in.” Id. There is also some question as to whether or not

claimant has been fully compliant with the treatment prescribed

by her doctors (at least as it relates to weight loss and smoking

cessation, given her long history of asthma, her obesity, and the

extent to which those conditions appear to contribute to her

disability). See generally 20 C.F.R. 416.930 (“In order to get

benefits, you must follow treatment prescribed by your physician

if this treatment can restore your ability to work”). See also

Progress notes completed by D r . Christina Anderson, transcript at

15 190 (opining that, as of September 2001, “none of these

conditions in [claimant] are disabling [in the long term]. All

are treatable.”).

Nevertheless, it is clear that claimant does presently

suffer from “severe” impairments that might well preclude her

from performing any work that exists in the national economy.

Unfortunately, however, the record is insufficiently developed

(particularly with regard to claimant’s RFC) to accurately assess

whether the ALJ’s disability determination is supported by

substantial evidence. If presented with a different record,

which more clearly supported the ALJ’s assessment of claimant’s

RFC, it might be possible to affirm his denial of benefits,

notwithstanding his reliance upon a “Physical Residual Functional

Capacity Assessment” form completed by someone other than an

acceptable medical source. But, for the reasons noted above,

that is not possible on the current record; it is simply unclear

what effect claimant’s impairments have on her “ability to do

sustained work-related physical and mental activities in a work

setting on a regular and continuing bases.” SSR 96-8p,

at * 1 .

16 Accordingly, pursuant to sentence four of

(g), this matter is remanded to the ALJ so that he might

more fully consider (and discuss) the evidence of record

concerning claimant’s residual functional capacity, and, if he

deems appropriate, to obtain a “Physical Residual Functional

Capacity Assessment” form from one or more of claimant’s treating

sources.

Claimant’s motion to reverse the decision of the

Commissioner (document n o . 4 ) is granted to the extent it seeks

remand of this matter to the ALJ. In all other respects, it is

denied. The Commissioner’s motion for an order affirming her

decision (document n o . 5 ) is denied. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 2 1 , 2004

cc: David LL.. Broderick, Esq. D. Lance Tillinghast, Esq.

17