Brouillard v . SSA 07-CV-367-SM 08/06/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Shirley I . Brouillard, Claimant

v. Civil N o . 07-cv-367-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), Shirley Brouillard moves to

reverse the Commissioner’s decision denying her 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. Because the Commissioner’s decision fails to address

claimant’s obesity and its likely adverse impact on her ability

to walk and climb stairs, and because it does not explain the

basis for rejecting the medical opinions of one of claimant’s

treating physicians, the court concludes that it is appropriate

to remand this matter to the Administrative Law Judge for further

consideration. Factual Background

I. Procedural History.

On October 2 5 , 2005, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that she had been unable to work since September 2 4 , 2005, due to

right knee pain as a result of total right knee replacement,

blindness in her right eye and compromised vision in her left

eye, diabetes, and obesity. Her application was denied and she

requested a hearing before an Administrative Law Judge (“ALJ”).

On February 5 , 2006, claimant and her sister, Ellen

Guimond,1 appeared (and testified) before an ALJ, who considered

claimant’s application de novo. On February 2 3 , 2006, the ALJ

issued her written decision, concluding that claimant retained

the residual functional capacity to perform the physical and

mental demands of sedentary work and, therefore, had the ability

to perform her prior work as an assistant service manager.

Accordingly, the ALJ concluded that claimant was not disabled, as

1 The correct spelling of this witness’s name is unclear; the hearing transcript shows it as “Demond,” the parties’ Joint Statement of Material Facts shows its as “Desmond,” and both the ALJ’s decision and claimant’s Disability Report, Admin. Rec. at 4 7 , show it as “Guimond.”

2 that term is defined in the Act, at any time prior to the date of

the ALJ’s decision.

Claimant then sought review of that decision by the Appeals

Council, which denied her request. Accordingly, the ALJ’s denial

of claimant’s application for benefits became the final decision

of the Commissioner, subject to judicial review. Subsequently,

claimant filed a timely action in this court, asserting that the

ALJ’s decision was not supported by substantial evidence.

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

Commissioner” (document n o . 9 ) . In response, the Commissioner

filed a “Motion for Order Affirming the Decision of the

Commissioner” (document n o . 1 0 ) . Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document n o . 1 1 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

3 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

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.2 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 contrary

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

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 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

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

5 to result in death or which 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 .

Secretary of Health & Human Services,

, 5 (1st Cir.

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

impairments prevent 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

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).

If 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

6 Cir. 1974); Benko v. Schweiker,

(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

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 is also 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:

7 physical or mental impairment or impairments are of such severity that [she] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A).

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.

In concluding that M s . Brouillard 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 her

alleged onset of disability, on September 2 4 , 2005. Next, she

concluded that claimant suffers from the following severe

impairments: “status-post total right knee replacement, right eye

blindness, and diabetes mellitus.” Administrative Record

8 (“Admin. Rec.”) at 1 8 . 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 1 9 .

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to lift and carry a maximum of ten

pounds occasionally and less than ten pounds frequently; to sit

for at least six hours in an eight-hour workday; and to stand and

walk for a maximum of two hours in an eight-hour workday.3 Given

those restrictions, the ALJ concluded that claimant retained the

ability to perform the exertional demands of sedentary work and,

therefore, could return to her prior job as an assistant service

manager. Admin. Rec. at 2 2 . Consequently, at step four of the

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).

9 sequential analysis, the ALJ concluded that claimant was not

“disabled,” as that term is defined in the Act, through the date

of her decision.

II. Challenges to the ALJ’s Decision.

Claimant challenges the ALJ’s determination that she was

capable of performing the full range of sedentary work, asserting

that the ALJ committed several errors. The most persuasive of

claimant’s arguments is her assertion that the ALJ failed to

recognize that her impairments, when viewed in combination,

preclude her from engaging in any substantial gainful activity.

Claimant’s memorandum (document n o . 9-2) at 5 . See also

Claimant’s Reply Memorandum (document n o . 13) at 2 . In

particular, claimant asserts that the ALJ failed to discuss the

effect that her obesity has on her ability to walk, stand, and

climb stairs - particularly in light of her degenerative knee-

joint disease. The ALJ also neglected to address the opinions of

one of claimant’s treating sources - opinions which, if credited,

suggest that claimant is totally disabled.

In November of 2006, claimant’s orthopedic surgeon prepared

a “Medical Source Statement of Ability to Do Work-Related

10 Activities (Physical).” Admin. Rec. at 185-88.4 That report

suggests, among other things, that claimant can lift less than

ten pounds occasionally, stand and/or walk for less than two

hours during a normal workday (and must alternate between

standing and walking at 15 minute intervals); and can never climb

stairs or ramps. The latter finding is consistent with

claimant’s testimony that, for example, she must seek her

landlord’s assistance in getting her groceries up the stairs to

her second floor apartment and must often climb those stairs

backwards, “on [her] tush.” Admin. Rec. at 198-99.

Claimant’s testimony and the opinions of her orthopedic

surgeon are, however, dramatically at odds with the opinions

expressed by the non-examining state agency physician (which were

adopted by the A L J ) . Admin. Rec. at 174-83. Among other things,

the non-examining physician concluded that claimant could

frequently lift 10 pounds; she could stand and/or walk for at

least two hours during a normal workday; she had an “unlimited”

4 The signature on that document is illegible and the parties have not identified the doctor who completed that form. See, e.g., Joint Statement of Material Facts at 5 (identifying the physician as simply “Plaintiff’s orthopedic surgeon”). Because the signature does not appear to be that of D r . Goumas, the court has assumed the report was prepared by D r . Eric R. Benson, the orthopaedic surgeon with whom claimant had her first consultation in November of 2005. See Admin. Rec. at 160.

11 ability to push and/or pull hand and foot controls (a conclusion

which seems to overlook claimant’s lower extremity limitations);

and that claimant had no “visual limitations” (another finding at

odds with the medical record, which reveals that claimant is

completely blind in her right eye, requires substantial

correction in her left eye, and claims to have difficulty reading

printed material as well as information displayed on a computer

monitor).

Despite the dramatic conflict between the opinions offered

by claimant’s orthopedic surgeon and the non-examining state

agency physician, the ALJ adopted the latter without addressing

the former. Admin. Rec. at 2 1 . In discussing the weight that

will be ascribed to the opinions of “treating sources,” the

pertinent regulations provide:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairments(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s opinion.

12

(d)(2). See also Social Security Ruling,

Policy Interpretation Ruling Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions, SSR 96-

2 p ,

(July 2 , 1996) (noting that when the ALJ

renders an adverse disability decision, his or her notice of

decision “must contain specific reasons for the weight given to

the treating source’s medical opinion, supported by the evidence

in the case record, and must be sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator gave

to the treating source’s medical opinion and the reasons for the

weight.”).

Here, while the ALJ need not have accepted D r . Goumas’s

opinion that claimant “is disabled and . . . can no longer work,”

Admin. Rec. at 1 0 2 , she should have discussed her reasons for

discounting the opinions set forth in the Medical Source

Statement, Admin. Rec. at 185-88 - opinions that are consistent

with claimant’s testimony, her acknowledged severe impairments,

and her obesity. Compare

(e)(1) (discussing

the weight to be ascribed to opinions on issues reserved to the

Commissioner like, for example, opinions that a claimant is

“disabled” or “unable to work”), with

(d)

(discussing the weight to be ascribed to examining and treating

13 source opinions on medical issues, including a claimant’s

symptoms, diagnosis, prognosis, and physical limitations). In

concluding that claimant could perform the full range of

sedentary work, the ALJ did not account for several of the

exertional limitations from which claimant’s orthopedic surgeon

believes she suffers, nor did she adequately explain the basis

for her (implicit) decision not to give controlling weight to

those medical opinions.

Finally, because the court deems it appropriate to remand

this matter and afford the ALJ the opportunity to consider and

address the issues raised above, it probably bears noting that

she should also address claimant’s obesity and the extent, if

any, to which it affects her residual functional capacity to

perform sedentary work. As one of the Social Security Rulings

points out:

[W]e consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. The provisions also remind adjudicators that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately. They also instruct adjudicators to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual’s residual functional capacity.

14 Social Security Ruling, Policy Interpretation Ruling Titles II

and XVI: Evaluation of Obesity, SSR 02-01p,

(Sept.

12, 2002) at *1.

Conclusion

For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document no. 9) is granted to the

extent she seeks a remand to the ALJ for further proceedings.

The Commissioner’s motion to affirm his decision (document no.

10) is denied.

Pursuant to Sentence Four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Steven J./McAuliffe United States District Judge

August 6, 2008

cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.

15