Dumensil v. SSA 10-CV-060-SM 08/04/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lisa Dumensil, Claimant

v. Civil No. lO-cv-060-SM Opinion No.

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

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Lisa Dumensil, moves to reverse the Commissioner's decision

denying her applications for Social Security Disability Insurance

Benefits under Title II of the Social Security Act,

(the "Act"), and Supplemental Security Income Benefits

under Title XVI of the Act,

-1383c. The

Commissioner objects and moves for an order affirming his

decision.

Factual Background

I. Procedural History.

In May of 2008, claimant filed applications for both

disability insurance benefits and supplemental security income

benefits, alleging that she had been unable to work since March 9, 2008 (subsequently amended to November 1, 2007), due to back

pain and depression. Her applications were denied and she

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

On August 20, 2009, claimant and her non-attorney

representative appeared before an ALJ, who considered claimant's

application de novo. On September 18, 2009, the ALJ issued his

written decision, concluding that claimant retained the residual

functional capacity to perform the physical and mental demands of

her past work. Alternatively, he concluded that she could

perform a significant number of jobs in the national economy.

Accordingly, he determined that claimant was not disabled, as

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

his decision.

Claimant then sought review of the ALJ's determination by

the Decision Review Board, which notified her that it would be

unable to conduct its review within the prescribed period.

Accordingly, the ALJ's denial of claimant's applications 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 an order remanding

2 the matter to the ALJ, with instructions to correct the

identified (alleged) errors. Claimant then filed a "Motion for

Order Reversing Decision of the Commissioner" (document no. 7).

In response, the Commissioner filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 8). 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. 9), 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

Commissioner of Social Security, with or without remanding the

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

3 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 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

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

Health & Human Services,

(1st Cir. 1981)("We

must uphold the [Commissioner's] findings in this case if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support his conclusion.").

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 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 of Health & Human Services,

(1stCir. 1984)

(citing Sitar v. Schweiker,

(1stCir. 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 when those

determinations are supported by specific findings. See

Frustaqlia 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 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 which has lasted or can be expected to last

for a continuous period of not less than 12 months."

(d)(1)(A). See also 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, 482

(1987); Santiago v. Secretary of Health & Human

Services,

(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,

(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,

(D. Mass. 1982).

If the claimant demonstrates 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)

and 416.912(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. Weinberger,

(1st Cir. 1974); Benko v.

Schweiker,

(D.N.H. 1982).

6 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.

. See also

. Ultimately,

a claimant is disabled only if her:

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

7 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). See also 42 U.S.C. § 1382c(a)(3)(B).

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 Ms. Dumensil was not disabled within the

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

step sequential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since November 1, 2007, her alleged onset date. Administrative

Record ("Admin. Rec.") at 44. Next, he concluded that claimant

suffers from the following severe impairments: "lumbar

degenerative disc disease and L5-S1 spondylolisthesis, and

depression." Jd. at 45. 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 404, Subpart P, Appendix 1.

Admin. Rec. at 45-46. Claimant does not challenge any of those

findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

less than the full range of light work.2 Specifically, he

concluded that:

claimant can lift 20 pounds occasionally and ten pounds frequently. In an eight-hour work day, the claimant can stand or walk for about 6 hours, and sit for approximately 6 hours. The claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl. The claimant can perform entry level jobs, which do not require complex instructions or tasks, or periods of extended concentration.

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 Admin. Rec. at 46. In light of those restrictions, the ALJ

concluded that claimant was capable of returning to her prior

work as a skills instructor. Xd. at 49.3 Alternatively, using

the Medical-Vocational Guidelines (also known as the "Grid") as a

framework for his decision, the ALJ concluded that claimant was

capable of performing a significant number of other jobs in the

national economy. I_d. Consequently, he concluded that claimant

was not "disabled," as that term is defined in the Act, at any

time through the date of his decision.

II. Claimant's Assertions of Error.

In support of her motion to remand, claimant advances the

following claims: (1) the ALJ failed to properly weigh the

opinion the physician assistant who treated claimant; (2) the ALJ

erred in finding that claimant's subjective complaints of pain

were not entirely credible; and (3) the ALJ erred in concluding

that she had the RFC to perform her past relevant work (step 4)

or, alternatively, that she could perform a reduced range of

3 The Commissioner concedes that the ALJ erred in making this finding. See Defendant's memorandum (document no. 8-1) at 2. Nevertheless, he says the ALJ's alternate finding - that claimant could perform other work that exists in the national economy - is supported by substantial evidence.

10 light work available in the national economy (step 5).4 Because

it is dispositive of claimant's pending motion, only claimant's

first argument need be addressed.

III. Opinion Testimony from "Other" Medical Sources.

In July of 2008, a non-examining state agency physician

reviewed claimant's medical records and completed a Physical

Residual Capacity Assessment. Admin. Rec. at 184-91. In it, he

concluded that claimant was capable performing light work, with

some restrictions. But, because the non-examining physician did

not provide much in the way of a written explanation for his

conclusions, it is difficult to know with certainty what medical

records he relied upon in reaching those conclusions. So, for

example, while he noted that claimant received "no relief" as a

result of physical therapy, he did not discuss the medications

that she was prescribed or their efficacy. Additionally, in

reaching the conclusion that claimant is not disabled, the non­

examining physician considered only claimant's spondylolisthesis;

he did not address her depression - a condition the ALJ concluded

was "severe."

4 Although claimant presents five distinct arguments in her memorandum, some of them are closely related. Accordingly, they can properly be stated as three general assertions of error.

11 About a year later, Gayle Spelma, a physician assistant,

evaluated claimant and completed a Medical Source Statement of

Ability to Do Work-Related Activities (Physical). Admin. Rec. at

192-98. At that point, Spelma had been treating claimant for at

least a year, see Admin. Rec. at 212, and reached very different

conclusions than those of the non-examining state agency

physician. For example, she concluded that claimant could never

lift or carry more than 10 pounds; could sit for no more than 5

minutes at a time, stand for no more than 15 minutes at a time,

and walk for no more than 15 minutes at a time; and, during an

eight-hour workday, claimant could sit for no more than a total

of one hour, stand for no more than two hours, walk for no more

than two hours, and would have to lie down for the balance of the

workday. Spelma also opined that claimant had either "marked" or

"extreme" limitations in all activities related to successfully

performing and sustain work. Admin. Rec. at 198. In the end,

Spelma opined that claimant was capable of part-time work for

less than five hours per day or less than four days per week.

The opinions issued by Ms. Spelma and the state agency

physician are dramatically different and stand in stark contrast

to one another. In support of her motion to remand, claimant

asserts that the ALJ failed to provide an adequate explanation

12 for his decision to reject Ms. Spelma's opinions and says his

analysis of those opinions failed to conform to the requirements

of Social Security Ruling 06-3p.5 The government, on the other

hand, asserts that the ALJ is vested with considerable discretion

when deciding how much (if any) weight to ascribe to observations

and opinions given my someone who is not an "acceptable medical

source," such as a nurse practitioner or a physician assistant.

See generally

The government's point is well taken - when deciding which

medical source opinion(s) to credit, the ALJ is afforded a

substantial amount of discretion. But, when exercising such

discretion, the ALJ must ordinarily discuss at least some of his

reasons for accepting one source's opinion over another's.

Otherwise, on appeal, the district court would have no way to

determine whether that discretion was exercised reasonably.

The Social Security Ruling upon which both claimant and the

government rely makes this reasonably clear (albeit implicitly).

5 Titles II and XVI: Considering Opinions and Other Evidence from Sources Who are not "Acceptable Medical Sources" in Disability Claims, Social Security Ruling 06-3p (Aug. 9, 2006),

.

13 These regulations provide specific criteria for evaluating medical opinions from "acceptable medical sources"; however, they do not explicitly address how to consider relevant opinions and other evidence from "other sources" listed in

(d) and 416.913(d). With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not "acceptable medical sources," such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed "acceptable medical sources" under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.

SSR 06-03p at *3 (emphasis supplied). Because the regulations

provide that an ALJ must consider evidence from both non-

acceptable medical sources and "other sources," it is necessarily

implicit that at least in some cases, the ALJ must give some

modest explanation for the weight ascribed to such opinions. In

other words, there will be situations in which it is not enough

to simply state, without more, that some opinions were considered

and rejected as being inconsistent with the medical record. This

was one of them.

Here, the ALJ pointed out that "Ms. Spelma is not an

acceptable medical source," Admin. Rec. at 48, and then concluded

that "her opinions are not supported by the medical evidence on

14 record" and, therefore, "her opinions [were] given little

weight." .Id. At least in this case, more was necessary. Of

course, it is possible to imagine a situation in which such an

explanation would be adequate - for example, where the record

contains overwhelming evidence, from multiple sources, that a

claimant is not disabled and the opinions of a non-acceptable

medical source stand in stark contrast to the great weight of the

evidence. In this case, however, the evidence is far less clear-

cut. The only opinion evidence in the record suggesting that

claimant has the RFC to perform a range of light work comes from

the non-examining state agency physician. Admin. Rec. at 184-91.

And, while that physician completed nearly all of the appropriate

"check boxes" on the form, he offered little explanation for his

conclusions and, obviously, never met with or spoke to claimant

(and, because he issued his opinion a year before Selma's, he did

not have the opportunity to consider it or comment upon it).

Juxtaposed against the non-examining physician's opinion is

the one issued by Ms. Spelma, Admin. Rec. at 192-98, who treated

claimant over a substantial period of time, was familiar with her

various treatments and medications (and their relative efficacy),

and, generally speaking, had the longitudinal view of claimant's

15 medical history that the Social Security regulations emphasize is

important.

Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (d)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of vour medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. . . . When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of 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 vour treating source's opinion.

(d) (emphasis supplied).

To be sure, that provision of the Social Security

regulations addresses opinions given by "acceptable medical

16 sources" and Ms. Spelma is not an acceptable medical source;

rather, she falls within the "other medical source" category.

But, SSR 06-03p considers that issue and provides:

Although

and 416.927 do not address explicitly how to evaluate evidence (including opinions) from "other sources," they do require consideration of such evidence when evaluating an "acceptable medical source's" opinion. For example, SSA's regulations include a provision that requires adjudicators to consider any other factors brought to our attention, or of which we are aware, which tend to support or contradict a medical opinion. Information, including opinions, from "other sources" — both medical sources and "non-medical sources" — can be important in this regard. In addition, and as already noted, the Act reguires us to consider all of the available evidence in the individual's case record in every case.

SSR 06-03p at 4 (emphasis supplied). That ruling goes on to

provide that:

[DJepending on the particular facts in a case, and after applying the factors for weighing opinion evidence, an opinion from a medical source who is not an "acceptable medical source" may outweigh the opinion of an "acceptable medical sources," including the medical opinion of a treating source. For, example, it may be appropriate to give more weight to the opinion of a medical source who is not an "acceptable medical source" if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion.

Id. at *5 (emphasis supplied).

17 Conclusion

Given the particular facts of this case, the court concludes

that the Administrative Law Judge was obligated to provide a more

detailed explanation for his decision to reject the opinions of

the physician assistant, Ms. Spelma - the medical professional

with arguably the most detailed knowledge of claimant's

condition, her treatment, and her response to that treatment.

While the ALJ has a great deal of discretion in this area, he

must give at least a brief and sufficient explanation for why he

chose to exercise that discretion in a particular manner. Here,

the ALJ's reasons for rejecting Ms. Spelma's opinions are not

sufficiently detailed to permit meaningful appellate review.

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

decision of the Commissioner (document no. 7) 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. 8)

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.

18 SO ORDERED.

S/ceven J/McAuliffe Chief Judge

August 4, 2 010

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

19