Mackinley v . Astrue CV-10-306-JL 5/31/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Lauchlin Mackinley

v. Civil N o . 10-cv-306-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the denial of plaintiff Lauchlin

Mackinley’s application for Social Security disability benefits.

See

(g). The administrative law judge (“ALJ”)

found that Mackinley, while severely impaired by the effects of a

stroke and chronic obstructive pulmonary disease, see

(c), was not disabled because he had the residual

functional capacity to perform light work, see

§ 404.1567(b),

and was capable of making an adjustment from his previous heavy

work to other jobs existing in the national economy, see id. §§

404.1520(g). In making those findings, the ALJ rejected

Mackinley’s more severe description of his symptoms and

functional limitations as “not fully credible,” and also rejected

the supporting assessment of his primary care physician, instead

giving “controlling weight” to the assessment of a state agency

physician who had not examined Mackinley.

Mackinley has moved for an order reversing the ALJ’s

decision, see L.R. 9.1(b)(1), arguing that it was not supported

by substantial evidence. The Commissioner of the Social Security Administration (“SSA”) has cross-moved for an order affirming

that decision, see L.R. 9.1(d), arguing the opposite. This court

has subject-matter jurisdiction under

(federal

question) and

(g) (Social Security). After

reviewing the administrative record, the parties’ joint statement

of material facts, and their respective memoranda, this court

grants Mackinley’s motion, denies the Commissioner’s motion, and

remands the case for reconsideration in light of several factual

errors by the ALJ.

I. Applicable legal standard

“Judicial review of a Social Security claim is limited to

determining whether the ALJ used the proper legal standards and

found facts upon the proper quantum of evidence.” Ward v . Comm’r

of Social Security,

5 2 , 655 (1st Cir. 2000) (citing

Nguyen v . Chater,

1 , 35 (1st Cir. 1999)). If the ALJ’s

factual findings were supported by “substantial evidence,” they

are “conclusive,” even if the court disagrees with the ALJ, and

even if other evidence supports a contrary conclusion.

(g); see also, e.g., Nguyen, 172 F.3d at 3 5 . Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Becker v . Sec’y of

Health & Human Servs.,

4 , 36 (1st Cir. 1990) (quoting

Richardson v . Perales,

(1971)).

2 That standard is not, however, “merely [a] rubber stamp [of]

the ALJ’s decision.” Scott v . Barnhart,

(7th

Cir. 2002) (quotation omitted). If the ALJ’s decision was based

on “a legal or factual error,” or otherwise unsupported by

substantial evidence, then it must be reversed and remanded under

section 405(g). Manso-Pizarro v . Sec’y of Health & Human Servs.,

5 , 16 (1st Cir. 1996) (quoting Sullivan v . Hudson,

7 7 , 885 (1989)); see also, e.g., Johnson v . Astrue,

(1st Cir. 2009) (reversing and remanding ALJ’s

decision denying disability benefits where it was based, in part,

on “a misreading of the record”).

A five-step process is used to evaluate an application for

Social Security disability benefits. See

(a)(4). The applicant bears the burden, through the

first four steps, of proving that he is disabled, i.e., that (1)

he is not engaged in substantial gainful activity; (2) he has a

severe impairment; (3) the impairment meets or equals a specific

impairment listed in SSA regulations; and (4) the impairment

prevents him from performing his previous relevant work.

At

step five, the burden shifts to the Commissioner to prove that

the applicant has the residual functional capacity to perform

other jobs existing in significant numbers in the national

economy. Id.; see also, e.g., Heggarty v . Sullivan,

(1st Cir. 1991).

3 II. Background

Mackinley is a 55-year-old man with a high school education

who lives in Nashua, New Hampshire. For more than 30 years, he

worked in a series of physically demanding jobs, including as a

sheet metal worker, forklift operator, and warehouse laborer. In

1998, he suffered a recurrent stroke. After a period of

recovery, including a lengthy hospitalization, he returned to

work. His physical condition improved over time, but the stroke

left him with numbness and mild weakness on the right side of his

body and the left side of his face, as well as problems with

fatigue and balancing. In addition to the stroke, Mackinley, a

longtime smoker, suffers from chronic obstructive pulmonary

disease (“COPD”), which causes shortness of breath after even

modest physical exertion. He also claims to suffer from carpal

tunnel syndrome.

In 2004, Mackinley lost his job as a sheet metal worker

because his employer was going out of business. After that, he

tried various other jobs, including as a landscaper and a

warehouse laborer, but was unable to perform with sufficient

speed and stamina. He also completed two years of vocational

rehabilitation training, becoming certified as a phlebotomist and

medical assistant, but was unable to secure a job in that field

because he had a criminal record (a marijuana charge from his

twenties). In 2007, still unemployed and living with his

4 parents, Mackinley applied for Social Security disability

benefits, alleging that he became disabled in 2004 due to his

stroke, COPD, and carpal tunnel syndrome.

Dr. Hugh Fairley, a state agency physician, reviewed

Mackinley’s medical records in 2007 and prepared an assessment of

his residual functional capacity. D r . Fairley noted that

Mackinley had some numbness, weakness, and fatigue from his

stroke, and also suffered from COPD. Nevertheless, D r . Fairley

concluded that Mackinley had the capacity to stand or walk for 6

hours in an 8-hour workday; to sit for 6 hours as well; to lift

and carry 20 pounds occasionally and 10 pounds frequently; to

climb stairs and ladders, balance, stoop, kneel, crouch, and

crawl occasionally; and to perform fine manipulations with his

fingers occasionally, albeit with some limitations. D r . Fairley

noted that his conclusions were not significantly different from

those of Mackinley’s treating physicians.

In 2009, however, Mackinley’s primary care physician, Donald

Reape, made a different assessment of Mackinley’s residual

functional capacity. D r . Reape concluded that Mackinley could

stand for only 90 minutes in an 8-hour workday, walk for only 30

minutes (with shortness of breath after 100 yards), and sit for

only 2 hours, because his fatigue would require him to take extra

breaks and lie down periodically, at irregular intervals. D r .

Reape further concluded that, while Mackinley had the ability to

5 lift and carry 10 pounds, he could only do so occasionally (not

frequently), and could not lift and carry 20 pounds at all, or

balance, or climb ladders. Due to those limitations, D r . Reape

deemed Mackinley incapable of full-time work.

Following that assessment, the ALJ held an evidentiary

hearing at which Mackinley testified about his employment

history, his efforts to find work, and his daily activities. He

explained that, while his condition had improved after his

stroke, it “reached a certain point that it started to go

downhill, and that’s where it’s been going ever since.” He

acknowledged that he could still work part-time (“one or two days

a week, I’m sure”), but testified that, after a few hours of

work, he needs to lie down and rest because of fatigue, and that

he cannot work on consecutive days. He testified that he can

still prepare his own meals, perform household chores (with

frequent rests), drive his car (though his right hand and arm go

numb “after the first couple of miles”), go shopping, go fishing,

and go “low-effort canoeing” (downstream for about an hour),

which is one of his hobbies.

The ALJ issued a decision denying Mackinley’s disability

claim in 2010. While acknowledging that Mackinley was severely

impaired by the effects of his stroke and COPD, see

(c), and that those “impairments could

reasonably be expected to cause [his] alleged symptoms,” the ALJ

6 found his testimony regarding the extent of his limitations “not

fully credible.” The ALJ stressed that (A) Mackinley’s treatment

notes “do not discuss complaints of fatigue”; (B) his “daily

activities, including household chores and canoeing,” were

“inconsistent” with his alleged limitations; and (C) he lost his

job for reasons unrelated to his health and that he had “been to

vocational rehabilitation and looked for work, which is

inconsistent with a claim for disability.”

The ALJ likewise rejected D r . Reape’s assessment that

Mackinley could not work full-time, finding it “not supported by

objective findings in his treatment notes” and “inconsistent with

[Mackinley’s] range of daily activities.” Instead, the ALJ gave

“controlling weight” to D r . Fairley’s earlier assessment that

Mackinley had the residual functional capacity to perform light

work, see

§ 404.1567(b), albeit with limited use of his

fingers for fine manipulations (and, the ALJ added, a need to

avoid pulmonary irritants). Relying on the testimony of a

vocational expert, the ALJ concluded that Mackinley, while not

capable of returning to his previous heavy work, could make an

adjustment to other jobs existing in significant numbers in the

national economy, see id. §§ 404.1520(g), including usher/

ticket-taker, assembler, ball assembler, mail-folding machine

operator, and inserter machine operator.

7 The SSA’s Decision Review Board initially selected

MacKinley’s claim for further administrative review, but did not

complete its review in a timely fashion, which resulted in the

ALJ’s decision becoming the final decision of the Commissioner.

See id. §§ 405.415, 405.420(a)(2).

III. Analysis

The question before this court is whether the ALJ’s decision

was supported by substantial evidence. See Part

As

explained below, the ALJ made a number of factual errors in

evaluating both Mackinley’s testimony and D r . Reape’s supporting

assessment. This court is “not able to conclude with confidence

that the ALJ’s decision would have been the same” without those

errors. Abdus-Sabur v . Callahan, N o . 98-2242,

, at

* 4 ,

, at *11 (1st Cir. July 2 7 , 1999)

(unpublished). The ALJ’s decision must therefore be reversed and

remanded for further findings and/or proceedings consistent with

this order. See, e.g., Johnson,

. This court

expresses no opinion on what the result of those findings and/or

proceedings should b e . “It is not the province of this court--

but of the ALJ--to weigh the (corrected) facts against all other

relevant facts.” LaBreque v . Astrue,

1 4 , 17

(McAuliffe, C . J . ) .

8 A. Complaints of fatigue

One of the main reasons that the ALJ gave for rejecting

Mackinley’s testimony and D r . Reape’s supporting assessment was

that his treatment notes “do not discuss complaints of fatigue”

and that “I don’t see where [fatigue] has been cited in [medical]

visits as a problem.” But this court’s review of the treatment

notes reveals that Mackinley complained repeatedly to D r . Reape

and others about fatigue, including in June and July 2007,

November 2008, and May 2009. See Admin. R. at 275 (“whiteouts

and fatigue”), 277 (“fatigue”), 327 (“Patient does complain of

fatigue.”), and 330. Indeed, even D r . Fairley’s assessment,

which was based on a review of Mackinley’s treatment notes,

acknowledged that “[f]atigue . . . contribute[s]” to his

functional limitations. Id. at 270. 1 So the ALJ’s suggestion

that Mackinley had not complained about fatigue during his

medical visits was erroneous.

1 Dr. Fairley’s assessment occurred in 2007, so he did not have the opportunity to review the treatment notes from 2008 and 2009 that mentioned fatigue, or D r . Reape’s assessment in 2009 that Mackinley could not work full-time. D r . Fairley stated that, as of that time, his conclusions were not significantly different from those of Mackinley’s treating physicians, including D r . Reape. That is no longer true. The ALJ did not address that issue in his decision, but should do so on remand. See, e.g., Johnson,

(“the amount of weight that can properly be given the conclusions of non-testifying, non- examining physicians will vary with the circumstances, including the nature of the illness and the information provided the expert”) (quotation omitted).

9 B. Daily activities

Another reason that the ALJ gave for rejecting Mackinley’s

testimony and D r . Reape’s supporting assessment was that

Mackinley’s “daily activities, including household chores and

canoeing,” were “inconsistent” with his alleged limitations. But

Mackinley testified that he could engage in those activities for

only a short period of time (e.g., a morning of chores, an hour

of canoeing), that he had to move at a slow pace with frequent

breaks, and that he needed to lie down and rest afterward. That

testimony, if true, would be consistent with Mackinley’s

testimony--and D r . Reape’s assessment--that Mackinley could work

part-time, but not full-time, because he needs frequent breaks

and needs to lie down at irregular intervals. C f . Johnson,

(“such activities are not necessarily inconsistent”

with limitation to part-time work).

The ALJ also stated, in describing Mackinley’s daily

activities, that he “swims a couple of times per week if

possible.” But, as noted in the parties’ joint statement of

facts, see document n o . 1 0 , at 6, Mackinley actually testified

that he sits on a deck and watches others swim, not that he swims

himself. There is obviously a huge difference between those two

activities, in terms of assessing his functional capacity. While

the ALJ only mentioned swimming once, that factual error could

have colored the ALJ’s overall impression of Mackinley’s daily

10 activities and, in turn, affected the weight given to Mackinley’s

testimony and D r . Reape’s assessment.

C. Efforts to find work

Another reason that the ALJ gave for rejecting Mackinley’s

testimony was that he had “been to vocational rehabilitation and

looked for work, which is inconsistent with a claim for

disability” and also “inconsistent” with Mackinley’s testimony

that he was “unable to work.” But, as the Commissioner

acknowledges, see document n o . 9-1, at 9 n.8, Mackinley never

testified that he was “unable to work.” To the contrary, he

openly acknowledged that he could work part-time, but testified

that he lacked sufficient speed and stamina to work full-time,

including at the various jobs he tried. So his efforts to find

work and develop new skills were not inconsistent with his

testimony in that respect.

Moreover, as many courts have noted, there is no “logical

incompatibility between working full time [much less seeking

work] and being disabled from working full time.” Hawkins v .

First Union Corp. Long-Term Disability Plan,

1 4 , 918

(7th Cir. 2003); accord Seitz v . Metro. Life Ins. Co.,

(8th Cir. 2006); Lasser v . Reliance Std. Life Ins. Co.,

8 1 , 392 (3d Cir. 2003). Following his stroke,

Mackinley “may have forced himself to continue in his job for

11 years despite severe . . . fatigue” and then, after being laid

off and unsuccessfully trying to find other work, “finally have

found it too much and given it up even though his condition had

not worsened.” Hawkins, 326 F.3d at 918.

Arguably, Mackinley’s efforts to find work and develop new

skills, coupled with his acknowledgment that he could work part-

time, would seem to bolster his credibility, not undermine i t .

See, e.g.,

(a) (listing “efforts to work” as a

relevant factor to consider in evaluating subjective disability

claims); SSR 96-7P (same). But it is the ALJ, not this court,

that has “prime responsibility” for making that credibility

determination on remand. Rodriguez v . Sec’y of Health & Human

Servs.,

1 8 , 222 (1st Cir. 1981). For now, it suffices

to say that the ALJ’s stark statement that Mackinley’s

“vocational rehabilitation and look[ing] for work . . . is

inconsistent with a claim for disability” was erroneous.2

IV. Conclusion

Pursuant to sentence four of

(g), Mackinley’s

motion to reverse the Commissioner’s decision3 is GRANTED. The

2 This is not to say that such a statement will always be grounds for reversal, or even that it would independently warrant reversal here. But, in light of the ALJ’s other factual errors and Mackinley’s testimony, this court concludes that the ALJ’s stark statement needs to be reconsidered. 3 Document n o . 7 .

12 Commissioner’s motion to affirm that decision4 is DENIED. The

case shall be remanded to the Commissioner for further findings

and/or proceedings consistent with this order. The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

0C J^(ff6*%& Joseph N. La'plante United States District Judge District of New Hampshire

Dated: May 3 1 , 2011

cc: Raymond J. Kelly, Esq. Gretchen Leah Witt, Esq. (AUSA)

4 Document n o . 9.

13