Smith v. SSA 10-CV-366-SM 05/20/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Pamela V. Smith, Claimant

v. Civil No. 10-cv-366-SM Opinion No. 2 011 DNH 081

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

O R D E R

Pursuant to

(g), claimant, Pamela Smith,

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 discussed below,

claimant's motion is granted, in part, and the Commissioner's

motion is denied.

Factual Background

I. Procedural History.

On March 12, 2008, claimant filed an application for

Disability Insurance Benefits, alleging that she had been unable

to work since February 12, 2006, due to back pain that radiates to her hips and right shoulder and neck. See Administrative

Record ("Admin. Rec.") at 137-41. Her application for benefits

was denied, .id. at 69-71, and she requested a hearing before an

Administrative Law Judge ("ALJ") , .id. at 75-76.

On November 4, 2009, claimant, her attorney, and a

vocational expert appeared before an ALJ, who considered

claimant's application de novo. Approximately three weeks later,

the ALJ issued her written decision, concluding that claimant

retained the residual functional capacity to perform the physical

and mental demands of a range of sedentary work. Although

claimant's limitations precluded her from performing her past

relevant work as a nurse, the ALJ concluded that there was still

a significant number of jobs in the national economy that she

could perform. Accordingly, the ALJ determined that claimant was

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

prior to the date of her decision. Admin. Rec. at 19.

The Decision Review Board affirmed the ALJ's decision.

Admin. Rec. at 4-6, making it 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 is not supported by substantial evidence and seeking a

2 judicial determination that she is disabled within the meaning of

the Act. Claimant then filed a "Motion for Order Reversing

Decision of the Commissioner" (document no. 1_) . In response, the

Commissioner filed a "Motion for Order Affirming the Decision of

the Commissioner" (document no. 9_) . 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. JLO.) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. "Substantial Evidence" and Deferential Review.

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 and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g). See

also Irlanda Ortiz v. Secretary of Health & Human Services, 955

, 769 (1st Cir. 1991) (holding that 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"). Consequently, provided the

ALJ's findings are properly supported, the court must sustain

those findings even when there may also be substantial evidence

supporting the contrary position. See, e.g., Tsarelka v.

Secretary of Health & Human Services,

(1st Cir.

1988); Rodriquez v. Secretary of Health & Human Services, 647

F .2d 218, 222 (1st Cir. 1981).

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). See also Richardson

v. Perales,

(1971).

4 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 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, by a

preponderance of the evidence, that her impairment prevents her

from performing her former type of work. See Gray v. Heckler,

(1st Cir. 1985); 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,

(1st Cir. 1982). See

also

(g).

5 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 v. Secretary of Health & Human Services,

(1st Cir. 1982). 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:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her]

6 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.

2 3 (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 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 her

alleged onset of disability: February 12, 2006. Admin. Rec. at

14. Next, she concluded that claimant suffers from the following

severe impairments: "degenerative disc disease of the lumbar

spine and degenerative disc disease of the cervical spine."

. Nevertheless, the ALJ determined that those impairments.

7 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 15.

Next, the ALJ concluded that claimant retained the residual

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

sedentary work.1 She noted, however, that claimant can only

perform jobs that allow her the "opportunity to stand and stretch

for a few minutes every hour," and that involve "only unskilled

tasks due to pain and side effects of her medication." Admin.

Rec. at 15. In light of those restrictions, the ALJ concluded

that claimant was not capable of returning to her prior job as a

nurse.

.

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). Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the testimony of a vocational expert, the ALJ concluded that,

notwithstanding claimant's exertional and non-exertional

limitations, she "is capable of making a successful adjustment to

other work that exists in significant numbers in the national

economy." Xd. at 19. Consequently, the ALJ concluded that

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

from February 12, 2006, through the date of her decision

(November 20, 2009) .

II. Claimant's Assertions of Error.

Claimant challenges the ALJ's determination that she was

capable of performing a range of sedentary work, asserting that

the ALJ failed to properly: (1) account for claimant's depression

when determining her RFC; (2) account for claimant's manipulative

limitations; (3) evaluate claimant's subjective complaints of

disabling pain; and (4) pose a hypothetical question to the

vocational expert that incorporated the foregoing (alleged)

impairments. As to at least claimant's first point, the court

agrees.

9 A. Evaluation of Mental Impairments.

The applicable federal regulations establish a detailed

"special technique" for evaluating the severity of mental

impairments.

.1520a. Initially, the ALJ must

determine whether the claimant has a "medically determinable

mental impairment."

.1520a(b)(1). If the

claimant has such an impairment, the next step is to rate the

degree of functional limitation resulting from the impairment in

four areas: activities of daily living; social functioning;

concentration, persistence, or pace; and episodes of

decompensation.

.1520a(c) (3) . And, finally, the

severity of the claimant's mental impairment must be determined

and his or her residual functional capacity calculated.

B. The ALJ Did Not Address Claimant's Depression.

Here, the ALJ did not follow the "special technique"

established in the regulations for assessing the severity of a

mental impairment. In fact, in her written decision the ALJ does

not mention claimant's depression at all. To be sure, when

claimant initially sought benefits, and even when she appeared

before the ALJ, neither she nor her attorney unambiguously said

that her depression caused (or contributed to) her asserted

inability to work. See, e.g.. Claimant's Request for

10 Reconsideration, Admin. Rec. at 72 ("A combination of my physical

impairments render me incapable of performing substantial gainful

employment.") (emphasis supplied). It is understandable, then,

that the ALJ might have assumed that claimant's depression had no

bearing on her alleged inability to work.

Nevertheless, the record does contain evidence that claimant

suffers from a medically determinable mental impairment: she has

been diagnosed by a qualified treating source - Dr. John Walsh, a

psychologist, as suffering from depression. Admin. Rec. at 375,

381. The ALJ was aware of claimant's depression and mental

health treatment, since claimant mentioned that she was depressed

and linked that depression to her inability to complete tasks in

a timely manner. Xd. at 56. Additionally, claimant's attorney

posed a hypothetical question to the vocational expert which

involved an individual with "cognitive difficulties" - something

the attorney described as causing the individual to need more

time to complete tasks. I_ci. at 65. In fact, the ALJ astutely

questioned claimant about her mental health at the hearing.

(in response to the ALJ's questions, claimant stated that

she has been receiving treatment from Dr. Walsh since March of

2009).

11 Given those facts, while it is a close call, the court

concludes that the ALJ was obligated to inquire further into

claimant's mental health by, for example, asking: (1) whether

claimant had been diagnosed with a mental impairment (she had);

(2) whether or how that impairment adversely affected her ability

to work or perform activities of daily living; and, perhaps most

importantly, (3) whether claimant was asserting that her mental

impairment caused or contributed to her alleged disability. See

generally Heqqartv v. Sullivan,

(1st Cir. 1991)

(discussing the ALJ's obligation to develop the record and, if it

can be done without undue effort, to fill in any "gaps in the

evidence necessary to a reasoned evaluation of the claim"). See

also

(a) ("We will consider only

impairment(s ) you say you have or about which we receive

evidence.") (emphasis supplied).2

After inquiring into claimant's depression, the ALJ should

have expressly stated whether she found that claimant did suffer

2 That regulation defines "evidence" to include "anything [the claimant] or anyone else submits to us or that we obtain that relates to your claim." 20 C.F.R. 404.1512(b). It includes the claimant's medical history, opinions, and statements about his or her treatment. Here, the Commissioner plainly received evidence that claimant suffers from a medically determinable mental impairment (i.e., depression).

12 from a "medically determinable mental impairment,"

.1520a(b)(1), or sought additional evidence on the matter

(e.g., an opinion from claimant's treating psychologist, an

independent consultative exam, etc.). And, if she concluded that

claimant did suffer from such an impairment, the ALJ should have

then followed the procedures established in the regulations to

"rate the degree of functional limitation resulting from the

impairment" in the four broad areas specified in the regulations,

assess the severity of claimant's depression, and determine her

RFC in light of that impairment.

Given the detailed analysis required when a claimant suffers

from a mental impairment, this court cannot simply infer from the

ALJ's silence that she concluded that claimant does not suffer

from depression. Nor can the court infer that the ALJ's silence

implies that she determined that, while claimant does suffer from

depression, it is not severe. It is more likely, given the

somewhat sparse evidence of depression in the record, that the

ALJ thought that no mental impairment claim was being asserted.

Remand is appropriate, to permit the ALJ to consider, and discuss

her findings and conclusions with regard to claimant's apparent

mental impairment. See, e.g., Maldonado v. Sec'v of Health &

Human Services,

(Table),

(1st

13 Cir. July 7, 1993) ("There is also uncontradicted evidence, which

the ALJ did not address or explain, that the claimant's mental

functioning in the critical period was, overall, moderately

limited as a result of her mental condition. Because this

evidence, together with claimant's statements, squarely put into

issue whether claimant's mental condition prevented her from

performing a particular job as she had performed it in the past,

the ALJ was not, as the following discussion indicates, free to

ignore i t .") .

Conclusion

This case presents a close question. Plainly, claimant and

her legal counsel could have done a better job of developing her

claim and making clear to the ALJ precisely how she believes her

depression causes (or contributes to) her inability to work.

And, given the fact that, prior to this appeal, neither claimant

nor her (prior) attorney clearly and unambiguously pressed that

impairment as a basis for disability, it is difficult to fault or

criticize the ALJ for failing to address the issue of claimant's

depression.

Nevertheless, because claimant was diagnosed with depression

by a qualified treating source, and because she raised her

14 history of mental health treatment at the hearing and the ALJ had

evidence of a mental impairment, and because it is conceivable

that claimant's depression is "severe," the procedures set forth

in the regulations for assessing mental impairments must be

employed.3

Accordingly, this matter is remanded, to provide the ALJ

with a full opportunity to consider and address claimant's

depression and, if she deems appropriate, secure additional

professional psychiatric evaluations of claimant. Remand will

also afford the ALJ the opportunity to address claimant's

assertion that her alleged manipulative limitations substantially

erode the relevant occupational base.

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

decision of the Commissioner (document no. 1_) is granted to the

extent she seeks a remand for further proceedings. The

Commissioner's motion to affirm his decision (document no. .9) is

3 Parenthetically, the court notes that because claimant adequately - though barely so - raised the issue of her mental health at the hearing, and because her testimony on that point is supported by the record, she did not waive the claim that she is disabled by reason of her mental impairment. See generally Mills v . Apfe1 ,

(1st Cir. 2001) (suggesting that a claimant waives - or perhaps forfeits - an issue/claim if she does not adequately present it to the A L J ) .

15 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 Chief Judge

May 20, 2011

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

16