Buxton v. SSA 08-CV-022-SM 09/16/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robin Buxton, Claimant

v. Civil No. 08-cv-20-SM Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Robin Buxton,

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. For the reasons given below, this matter

is remanded to the Administrative Law Judge ("ALJ") for further

proceedings consistent with this opinion.

Factual Background

I. Procedural History.

On February 16, 2006, claimant filed an application for

Disability Insurance Benefits and Supplemental Security Income

benefits under Titles II and XVI of the Act, alleging that she had been unable to work since December 31, 1998 due to symptoms

of post-traumatic stress disorder. She was awarded Supplemental

Security Income Benefits, with an established onset date of

disability of January 1, 2005. Nevertheless, her application for

Disability Insurance Benefits was denied on grounds that she was

not disabled just three months earlier, as of her date last

insured (i.e., September 30, 2004). She then requested, and was

granted, a hearing before an ALJ.

On April 26, 2007, claimant and her attorney appeared before

an ALJ, who considered claimant's application for Disability

Insurance Benefits de novo. At that hearing, claimant amended

her alleged disability onset date to November of 2000.

Administrative Record ("Admin. Rec.") at 210-11.1 Subsequently,

the ALJ issued a written decision in which he concluded that, as

of her date last insured, claimant retained the residual

functional capacity to perform the physical and mental demands of

a significant number of jobs existing in the national economy.

Accordingly, he concluded that claimant was not disabled, as that

1 Although it is a minor error, the ALJ's written decision incorrectly states that claimant's amended onset date was January 1, 2000. See Admin. Rec. at 13.

2 term is defined in the Act, prior to the date on which her

insured status expired.

Claimant sought review of the ALJ's decision by the Appeals

Council, which denied her request. As a result, 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 and

seeking a judicial determination that she is disabled within the

meaning of the Act. She then filed a "Motion for Order Reversing

Decision of the Commissioner" (document no. 6). In response, the

Commissioner filed a "Motion for Order Affirming the Decision of

the Commissioner" (document no. 10). 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 no. 11), 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 ALU'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 Co. v. NLRB,

(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..

(1966).

4 substantial evidence."). See also Rodriquez v. Secretary of

Health & Human Services.

(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.

(1st Cir. 1984)

(citing Sitar v. Schweiker.

(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.

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

Human Services.

(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.

(1987); Santiago v.

Secretary of Health & Human Services.

(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.

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

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

the usual civil standard: a "preponderance of the evidence." See

Paone v. Schweiker.

(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.

683 F .2d 1, 2 (1st Cir. 1982). See also

(g). 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.

6 Weinberger,

(1st 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.

(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'’

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

decision.

Discussion

I. Background - The ALJ's Findings.

In concluding that Ms. Buxton was not disabled within the

meaning of the Act, the ALJ first determined that she had not

been engaged in substantial gainful employment since January 1,

2000. Next, he concluded that claimant suffers from borderline

personality disorder and post-traumatic stress disorder ("PTSD"

both of which were deemed to be severe. Admin. Rec. at 15.

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 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ then determined that claimant retained the residual

functional capacity ("RFC") to perform a full range of exertional

work, concluding that she "has no physical limitations and can do

unskilled jobs not requiring complex, detailed instructions/

tasks." Admin. Rec. at 18. He noted, however, that claimant's

RFC was "minimally compromised by nonexertional limitations,"

concluding that she "has moderate limitations in some areas of

functioning which are affected by her impairments: specifically

in social functioning and maintaining concentration, persistence,

and pace." Ici. In light of those findings, and applying the

Medical-Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P,

Appendix 2, tables 1-3 (the "Grid"), as a guide, he concluded

that claimant's symptoms were "not severe enough to significantly

erode the number of jobs in the national economy which she can

perform." Admin. Rec. at 21. Accordingly, he found that

claimant was not disabled at any time through her date last

insured.

9 II. Claimant's Assertions of Error.

Claimant advances several arguments in an effort to

undermine the ALJ's conclusion that she was not, as of her date

last insured, disabled. For the most part, those arguments lack

merit. She does, however, identify one problem with the ALJ's

analysis. Although she does not develop the argument in any

detail, claimant suggests that the ALJ erred by relying

exclusively on the Grid, without the benefit of testimony from a

vocational expert. The Court of Appeals for the First Circuit

has said the following about the nature and proper use of the

Grid:

"The Grid," as it is known, consists of a matrix of the applicant's exertional capacity, age, education, and work experience. If the facts of the applicant's situation fit within the Grid's categories, the Grid directs a conclusion as to whether the individual is or is not disabled. However, if the applicant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust) that restrict his ability to perform jobs he would otherwise be capable of performing, then the Grid is only a framework to guide the decision.

Seavev v. Barnhart.

(1st Cir. 2001) (citations

omitted).

10 The purpose of the Grid is to streamline the process by

which the Commissioner may satisfy his burden of proving,at step

five of the sequential analysis, that jobs exist in the national

economy that the claimant can perform. See Ortiz v. Secretary of

Health & Human Services.

(1st Cir. 1989). In

short, it allows the Commissioner to meet that burden without

hearing testimony from a vocational expert. But, because the

Grid "is meant to reflect the potential occupational base

remaining to a claimant in light of his strength limitations,"

when a claimant suffers from "nonexertional impairments in

addition to exertional limits, the Grid may not accurately

reflect the availability of jobs such a claimant could perform."

Heggartv v. Sullivan.

(1st Cir. 1991)(emphasis

added).

Nevertheless, the First Circuit has held that an ALJ may

rely exclusively on the Grid to establish the existence of

occupations in which the claimant can engage provided the

claimant's nonexertional limitations do not impose more than a

marginal limitation on the range of work the claimant otherwise

has the exertional capacity to perform. See Ortiz,

. But, "[i]f the occupational base is significantly limited

by a nonexertional impairment, the [Commissioner] may not rely on

11 the Grid to carry the burden of proving that there are other jobs

a claimant can do. Usually, testimony of a vocational expert is

required." Heggartv.

(citation omitted).

In this case, given the nature and severity of claimant's

mental impairments, the ALJ erred by relying exclusively upon the

Grid (even as a "framework" for his decision), rather than

obtaining the testimony of a vocational expert. The court of

appeals addressed this point at length in Ortiz. noting that the

"shorthand approach" of using the Grid as a framework to guide a

disability determination is only appropriate under certain

circumstances:

We think such a shorthand approach is permissible, so long as the factual predicate (that claimant's [mental impairment] does not interfere more than marginally with the performance of the full range of unskilled work) is amply supportable. . . . [S]o long as a nonexertional impairment is justifiably found to be substantially consistent with the performance of the full range of unskilled work, the Grid retains its relevance and the need for vocational testimony is obviated.

In the case of mental impairments, this inquiry actually entails two separate determinations: (1) whether a claimant can perform close to the full range of unskilled work, and (2) whether he can conform to the demands of a work setting, regardless of the skill level involved. As to the former, the Secretary has outlined the mental capabilities required for unskilled work as follows:

12 The basic mental demands of competitive remunerative unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.

Ortiz,

(quoting SSR 85-15, Titles II and XVI:

Capability to do Other Work - The Medical-Vocational Rules as a

Framework for Evaluating Solely Nonexertional Impairments,

(Nov. 1984)) (emphasis supplied).

Here, the record strongly suggests that claimant's mental

impairments have substantially diminished her ability to

"understand, carry out, and remember simple instructions; to

respond appropriately to supervision, coworkers, and usual work

situations; and to deal with changes in a routine work setting."

(quoting SSR 85-15). See, e.g.. Admin. Rec. at 161 (in

section III of claimant's functional capacity assessment, the

examiner concludes that Ms. Buxton is "not able to maintain

attention and concentration for extended periods of time. She is

not able to perform activities within a schedule and maintain

regular attendance. She is not able to complete a normal workday

and workweek without interruptions from psychologically based

13 symptoms and perform at a consistent pace. . . . She is not able

to work in coordination or get along with others without being

distracted or distracting them. . . . She is not able to accept

instructions and respond appropriately to criticism from

supervisors."). If those conclusions (and other, similar,

conclusions in the record) are credited as true, the ALJ's

reliance on the Grid was in error. Instead, the ALJ should have

consulted a vocational expert to determine whether, in light of

claimant's nonexertional limitations, she was still capable of

performing substantial gainful activity at the non-skilled level.

Finally, the court cautions that if a question arises as to

when claimant's impairments became so severe as to render her

disabled, the ALJ should consult a medical expert. The court

addressed that issue at length in a recent opinion. See Moriartv

v. Commissioner. 07-cv-342-SM,

(D.N.H. Aug. 28,

2008). See also Social Security Ruling 83-20, Titles I and XVI:

Onset of Disability,

(1983).

Conclusion

This is, to be sure, a close case. While there is certainly

evidence in the record supportive of claimant's assertion that

she was disabled prior to her date last insured, there is also

14 evidence supportive of the conclusion that she was not. Among

other things, the ALJ appears to have correctly concluded that

claimant's impairments do not meet the severity requirements of

any listed impairments because she is not (or was not) "markedly

limited" in two of the four relevant areas of functioning.

Additionally, there is evidence of claimant's lack of consistent

treatment, both in terms of attending therapy sessions and taking

prescribed medications. A claimant's failure to follow a

prescribed treatment regimen, combined with a failure to

faithfully take prescribed medications (particularly when, as

here, the claimant reports decreased symptoms when faithfully

following the prescribed regimen), certainly undermines her

claims of disabling symptoms. See

. See

also Social Security Ruling ("SSR") 82-59, Titles II and XVI:

Failure to Follow Prescribed Treatment.

(1982).3

3 The record suggests that claimant's failure to take medications as prescribed was a knowing and voluntary decision. See, e.g.. Admin. Rec. at 93 ("She was on Zoloft 100 mg qd in past, and did very well. She d/c [discontinued] in 9/01 because she felt she no longer needed it."). Claimant has not pointed to any opinions from either examining or non-examining medical sources that suggest her fallure/inability to take prescribed medications as instructed was the product of her mental impairments.

15 Nevertheless, in light of the fact that the Commissioner

determined that claimant was disabled (at least for purposes of

SSI benefits) as of January 1, 2005, he bears a relatively heavy

burden (given the substantial medical record in this case and

claimant's well-documented and lengthy history of mental health

disorders) to show that she was not disabled only three months

earlier, when her insured status expired. And, given the

quantity of evidence suggesting that claimant's nonexertional

(i.e., mental) impairments are precisely the type which severely

limit the occupational base of even non-skilled work, see Ortiz,

, the court is persuaded that the ALJ should not

have relied exclusively on the Grid. Instead, he should have

consulted a vocational expert.

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

decision of the Commissioner (document no. 6) 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. Claimant's motion to supplement the

administrative transcript (document no. 8) is denied as moot.

Pursuant to Sentence Four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

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

accordance with this order and close the case.

SO ORDERED.

St/feven J./McAuliffe mited States District Judge

September 16, 2008

cc: Elizabeth R. Jones T. David Plourde, Esq.

17