Barriault v . SSA 07-CV-176-SM 04/02/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Eugene A . Barriault, Claimant

v. Civil N o . 07-cv-176-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g), Eugene A . Barriault moves to

reverse the Commissioner’s decision denying his application for

Social Security Disability Insurance Benefits under Title II of

the Social Security Act,

(the “Act”). The

Commissioner objects and moves for an order affirming his

decision. For the reasons set forth below, the Commissioner’s

motion is denied and the claimant’s motion is granted to the

extent it seeks a remand to the Administrative Law Judge for

further proceedings.

Factual Background

I. Procedural History.

The procedural history to this case is both lengthy and

complex and has involved several hearings before various ALJ’s

and at least one favorable opinion from the Appeals Council (granting claimant’s application for Supplemental Security Income

benefits). It is described in some detail in the parties’s Joint

Statement of Material Facts (document n o . 10) and, because it is

not entirely relevant to the issues presently before the court,

need not be rehearsed in detail. It is sufficient to note the

following. First, it has already been resolved that claimant was

not disabled at any time prior to April 1 7 , 1998 (hence, his

current application seeking benefits as of April 1 8 , 1998).

Additionally, it has already been resolved that he was disabled

as of July 1 , 2002, based upon a consultative examiner’s

conclusion that he met the requirements of Listing 4.04C(1)(e)

since July 3 0 , 2000, and was, therefore, “presumptively disabled”

as of that date. Administrative Record (“Admin. Rec.”) at 144.

The issue currently before the court is whether the ALJ

erred in concluding that claimant was not disabled during a

relatively brief period of eleven and one-half months, between

April 1 8 , 1998, and March 3 1 , 1999 (his date last insured). The

ALJ concluded that, although claimant suffers from impairments

that are “severe,” he was not disabled at any time prior to his

date last insured. Claimant then sought review of that decision

by the Appeals Council. On April 1 3 , 2007, however, the Appeals

Council denied his request, thereby rendering the ALJ’s decision

2 a final decision of the Commissioner, subject to judicial review.

Subsequently, in June of 2007, claimant filed an action in this

court, asserting that the ALJ’s decision was not supported by

substantial evidence and seeking a judicial determination that he

is disabled within the meaning of the Act. Claimant then filed a

“Motion for Order Reversing Decision of the Commissioner”

(document n o . 8 ) . The Commissioner objected and filed a “Motion

for Order Affirming the Decision of the Commissioner” (document

no. 9 ) . Those motions are pending.

II. Stipulated Facts.

As noted above, the parties have, pursuant to this court’s

Local Rule 9.1(d), submitted a statement of stipulated facts.

Because that filing is part of the court’s record (document n o .

1 0 ) , its contents 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 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

judgment affirming, modifying, or reversing the decision of the

3 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.1 See

(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &

Human Services,

(1st Cir. 1991). Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

See Tsarelka v . Secretary of Health & Human Services,

(1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence.”). See also Rodriguez v . Secretary of Health & Human

Services,

1 8 , 222-23 (1st Cir. 1981).

In making factual findings, the Commissioner must weigh and

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

1 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). See also See Social Security Ruling, Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, SSR 96-2p,

at *3 (July 2 , 1996).

4 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,

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

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 12 months.”

(d)(1)(A). 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 .

5 Secretary of Health & Human Services,

, 5 (1st Cir.

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

impairment prevents him from performing his 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

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).

Provided the claimant has shown an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he 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).

In assessing a disability claim, the Commissioner considers

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

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

6 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,

. When determining whether a claimant

is disabled, the ALJ must also 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

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A).

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

motion to reverse and the Commissioner’s motion to affirm his

decision.

Discussion

I. Background - The ALJ’s Findings.

A. ALJ Decision of June, 2003.

In an earlier decision (which was subsequently reversed in

part and remanded in part by the Appeals Council), the same ALJ

who rejected claimant’s most recent application for disability

benefits concluded that: (1) “claimant’s subjective allegations

are generally credible,” Admin. Rec. at 8 2 ; (2) claimant suffers

from coronary artery disease with angina, osteoarthritis of both

shoulders, and depression, each of which is “severe,” id.; and

(3) “the claimant has been under a ‘disability,’ as defined in

the Social Security Act since April 1 8 , 1998,” id,; see also

Admin. Rec. at 8 1 . Some of those factual findings, as well as

the ultimate conclusion that claimant was disabled as of April

1 8 , 1998, are decidedly at odds with the ALJ’s more recent

findings and conclusions.

8 B. ALJ Decision of June, 2005.

Following remand from the Appeals Council, the ALJ conducted

another hearing at which M r . Barriault appeared and testified.

And, approximately two years after her original decision, the ALJ

issued a second decision - this time concluding that claimant was

not disabled at any time between April 1 8 , 1998, and his date

last insured (March 3 1 , 1999).

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, she first determined that claimant had

not been engaged in substantial gainful employment since April of

1998. Admin. Rec. at 2 0 . Next, she concluded that claimant

suffers from coronary artery disease with angina, osteoarthritis

of both shoulders, and a history of both tobacco and alcohol

abuse, all of which are “severe impairments.” Admin. Rec. at 20-

21. Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 4 0 4 , Subpart P, Appendix 1 . Admin.

Rec. at 2 1 .

9 The ALJ then concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

sedentary work.2 She noted, however, that claimant’s RFC was

limited by the following non-exertional factors: claimant could

not be exposed to temperature extreme, fumes, or dust, nor could

he work in areas with poor ventilation. Admin. Rec. at 2 4 . In

light of those restrictions, the ALJ determined that claimant was

not capable of returning to his prior job as a auto mechanic.

Admin. Rec. at 2 5 .

Finally, the ALJ considered whether, given claimant’s

residual functional capacity to perform sedentary work, and in

light of his non-exertional limitations, there were any jobs in

the national economy that claimant might perform. Relying on the

Medical-Vocational Guidelines, 20 C.F.R. p t . 4 0 4 , subpt. P, App.

2 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2 , 1996) (citation omitted).

10 2 , tables 1-3 (also known as the “Grid”), as a framework for her

decision-making, the ALJ concluded that, during the narrow period

of time in question, there were jobs in the national economy that

claimant could perform, notwithstanding his exertional and non-

exertional limitations. Accordingly, she concluded that claimant

was not “disabled,” as that term is used in the Act, at any time

between his alleged onset date (April 1 8 , 1998) and his date last

insured (March 3 1 , 1999).

II. Inconsistent Findings.

The issue addressed in the ALJ’s original decision (dated

June 2 4 , 2003) is the same issue that was addressed in her most

recent decision (dated June 2 2 , 2005): whether claimant was

disabled, within the meaning of the Act, at any time between

April 1 8 , 1998, and March 3 1 , 1999. Although in both cases the

ALJ concluded that claimant was not entitled to disability

benefits, the factual findings supporting those decisions are

decidedly different.

For example, in her original decision the ALJ found that

“claimant’s subjective allegations [were] generally credible.”

Admin. Rec. at 8 2 . In her most recent decision, however, the ALJ

concluded that “claimant’s testimony regarding his subjective

11 complaints of pain was sincere, but not credible as to totally

disabling pain because of the response to treatment that he had,

the nature of his pain, the functional ability and his daily

activities.” Admin. Rec. at 2 6 .

Additionally, in her most recent decision, the ALJ

specifically concluded that claimant’s depression was “not

severe,” noting that “prior to March 3 1 , 1999, there were no

limitations in his activities of daily living attributable to a

mental impairment, no limitations in social functioning, no

deficiencies of concentration, persistence or pace due to a

mental impairment and no episodes of decompensation. Thus, the

claimant’s adjustment disorder was ‘not severe’ at any time

through March 3 1 , 1999.” Admin. Rec. at 2 1 . Those findings are,

however in stark contrast to her earlier conclusions about

claimant’s depression:

The claimant has been diagnosed with depression. The claimant’s symptoms include an appetite disturbance, sleep disturbance and decreased energy. The claimant isolates [himself] and is withdrawn. The record establishes that the claimant’s ability to perform his daily activities and to attend to and concentrate on tasks is mildly limited by his depressive symptoms. However, the claimant’s ability to function in social settings is moderately limited by his depression. Accordingly, the claimant’s depression is a “severe impairment.”

12 Admin. Rec. at 7 8 . See also Admin. Rec. at 81 (“I find that

claimant retains the ability to perform work activity at the

sedentary level of exertion, but that he is unable to sustain the

psychological demands of work. . . . Accordingly, I find that the

combination of the claimant’s physical and mental impairments

precludes the performance of work activity.”).

Perhaps more importantly, in her original opinion, the ALJ

specifically concluded that, as of April 1 8 , 1998, claimant was

disabled within the meaning of the Act (though she held that he

was not entitled to benefits because she believed his alcohol

addiction was “material to the determination of disability,”

Admin. Rec. at 81 - a factual finding that was, as noted above,

reversed on appeal by the Appeals Council. Admin. Rec. at 1 4 4 ) .

More recently, however, the ALJ concluded that claimant was not

disabled at any point in time between April 1 8 , 1998, and March

3 1 , 1999.

The ALJ did not explain the reasons for the markedly

different conclusions she reached in her second opinion, nor is a

basis readily apparent from the record. It would appear that the

same evidence was before her when she rendered both decisions,

except, of course, when she authored her most recent opinion

13 claimant’s medical record was more complete and included

treatments he had received after the ALJ’s original opinion

(treatments which plainly indicate that claimant’s condition

continued to deteriorate). Given the ALJ’s original opinion, and

the lack of an explanation for the very different conclusions

reached in her most recent opinion, the court cannot conclude

that her most recent opinion is supported by substantial

evidence. There i s , for example, no indication why the ALJ

recently concluded that claimant’s depression was not severe,

when she had, only two years earlier, concluded that it was

severe (during the same time frame). Nor is it apparent why the

ALJ once determined claimant was “disabled” as of April 1 8 , 1998,

but, when the case was remanded to her (on a different issue),

she changed her view and determined that he was not disabled.

Given those inconsistencies (and the lack of an adequate

explanation for them), the court is constrained to conclude that

the ALJ’s most recent determination that claimant is not disabled

is not supported by substantial evidence in the record.

III. Weight Ascribed to Treating Physician’s Opinion.

Although the court has already resolved this matter in favor

of claimant, it i s , perhaps, appropriate to discuss one of the

14 claims he raises in his memorandum, as it is likely to be an

issue on remand. In support of his motion to reverse the ALJ’s

adverse disability finding, claimant asserts that the ALJ failed

to afford proper weight to the opinions expressed by his treating

physician, D r . Nethala. There appears to be some confusion over

the proper interpretation that should be given to D r . Nethala’s

various reports concerning claimant’s medical condition and its

effect on his ability to perform various work-related tasks.

During the relevant time period (i.e., between April 1 8 ,

1998, and March 3 1 , 1999), D r . Nethala’s notes contain references

to his opinion that claimant was “unable to work, due to his

heart problems” and that claimant was “disabled, due to his

medical problems.” Admin. Rec. at 245. Yet, at the same time,

Dr. Nethala opined that claimant was capable of lifting up to 20

pounds - an opinion that i s , at least potentially, inconsistent

with a finding of disability. See Admin. Rec. at 22 (“Although

Dr. Nethala opined in January 1998 that the claimant was

‘disabled due to his medical problems,’ specifically his chest

wall problems and arthritis of the shoulders, the only limitation

placed upon the claimant was to avoid lifting more than 20

pounds.”).

15 In September of 1999 (i.e., after claimant’s date last

insured), however, D r . Nethala completed a “Cardiac Impairment

Questionnaire” in which he opined, among other things, that as of

at least June of 1995, claimant was incapable of lifting more

than five pounds, could carry no more than 10 pounds, would

occasionally suffer from lapses in attention and concentration,

could sit for no more than four hours during an eight-hour day,

could stand/walk for less than one hour during that period, and

would need to change his position every hour. Admin. Rec. at

249-53. In short, D r . Nethala’s responses on that questionnaire

suggest that claimant was, both currently and dating back as far

as 1995, disabled.

Plainly, there are some inconsistencies between D r .

Nethala’s office notes of January, 1998, and the subsequently-

prepared Cardiac Impairment Questionnaire. And, the ALJ did, to

some degree, address those inconsistencies. See Admin. Rec. at

25. But, a lingering problem remains unresolved: D r . Nethala’s

opinion, rendered in 1998, that claimant could lift up to 20

pounds, even if fully credited over his more recent (and

comprehensive) retrospective diagnosis, does not compel the

conclusion that claimant was capable of substantial gainful

activity. That is to say, simply because an individual has the

16 medical ability to lift 20 pounds does not mean that he or she is

not disabled. A more complete picture of the individual’s

functional capacity is obviously needed. Unfortunately, D r .

Nethala’s notes in 1998 do not provide that more complete picture

and, therefore, the opinions expressed in those notes may (or may

not) be inconsistent with his subsequent (and more thorough)

opinions.

To resolve those apparent inconsistencies, the ALJ should

consider communicating with D r . Nethala. See Social Security

Ruling, Policy Interpretation Ruling Titles II and XVI: Medical

Source Opinions on Issues Reserved to the Commissioner, SSR 96-

5 p ,

at *6 (July 2 , 1996) (“Because treating source

evidence (including opinion evidence) is important, if the

evidence does not support a treating source’s opinion on any

issue reserved to the Commissioner and the adjudicator cannot

ascertain the basis of the opinion from the case record, the

adjudicator must make ‘every reasonable effort’ to recontact the

source for clarification of the reasons for the opinion.”). See

also

(e)(1) (explaining the Commissioner’s

obligation to recontact a treating physician for additional

information when the record contains inadequate information to

make a disability determination). Alternatively, if D r . Nethala

17 is unavailable, it is conceivable that another medical expert

might be able to review those notes/reports and explain the

apparent inconsistencies.3

Finally, the court agrees with claimant’s assertion that the

mere fact that his D r . Nethala described his condition as

“stable,” does not compel the conclusion that claimant was

capable of engaging in substantial gainful activity. See

generally Claimant’s memorandum at 8-9. See also Admin. Rec. at

2 2 , 2 4 , and 25 (where the ALJ suggests, at least implicitly, that

because claimant’s “cardiac status was stable,” and because the

only restriction D r . Nethala expressly imposed on him was that he

not lift more than 20 pounds, he was necessarily capable of

substantial gainful activity). The mere fact that his condition

was “stable” does not shed any light on his residual functional

capacity, nor does it provide any information as to whether he

was or was not disabled at the time. As claimant points out, it

is entirely possible for a comatose patient to be “stable,” yet

plainly lack the ability to engage in substantial gainful

activity.

3 To be sure, the ALJ had originally planned to have a medical expert present at the hearing on February, 1 5 , 2005. But, for some reason, that medical expert was unable to attend and, although he then proposed to appear telephonically, he apparently cancelled at the last moment. Admin. Rec. at 6 0 .

18 Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that, absent further explanation from the ALJ for

the decidedly different factual and legal conclusions in her two

decisions, it cannot conclude that substantial evidence in the

record supports her determination that claimant was not disabled

at any time prior to the expiration of his insured status on

March 3 1 , 1999. The court is also persuaded that, absent

elaboration from D r . Nethala regarding his various assessments of

claimant’s condition and capacity to engage in substantial

gainful activity, there is not substantial evidence in the record

to support the ALJ’s determination that “Dr. Nethala’s current

opinion conflicts with the record of his treatment of the

claimant.” Admin. Rec. at 2 5 . Accordingly, claimant’s motion to

reverse the decision of the Commissioner (document n o . 8 ) is

granted to the extent he seeks a remand to the ALJ for further

proceedings. The Commissioner’s motion to affirm his decision

(document n o . 9 ) is denied.

Pursuant to Sentence Four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order. Among other things, the ALJ should consider

19 providing an explanation for the factual and legal findings in

her most recent decision that differ from those in her original

opinion. She should also consider contacting Dr. Nethala so he

might resolve any ambiguities associated with interpreting his

various functional assessments of claimant.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

S __feven J./McAuliffe Chief Judge

April 2, 2008

cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.

20