Shaw v . SSA 11-CV-141-SM 12/16/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Chrissy D. Shaw, Claimant

v. Case N o . 11-cv-141-SM Opinion N o .

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

O R D E R

Pursuant to

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

Chrissy Shaw, moves to reverse the Commissioner’s decision

denying her application for Social Security Disability Insurance

benefits under Title II of the Social Security Act and

Supplemental Security Income benefits under Title XVI of the Act.

See

, 1381 et seq. The Commissioner objects and

moves for an order affirming his decision.

Factual Background

I. Procedural History

On November 1 0 , 2008, claimant filed an application for

Social Security Disability Insurance benefits (“DIB benefits”)

and on November 2 5 , 2008, filed an application for Supplemental

Security Income benefits (“SSI benefits”). In both applications

she alleged that she had been unable to work since November 2 6 , 2005. She asserted eligibility for benefits based on

disabilities due to problems with her cervical spine, bipolar

disorder, arthritis, anxiety, and depression. Her applications

for benefits were denied and she requested an administrative

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

On August 9, 2010, claimant, her attorney, and an impartial

vocational expert appeared before an ALJ. On October 2 0 , 2010,

the ALJ issued his written decision, concluding that claimant was

not disabled. The Decision Review Board selected the ALJ’s

decision for review, but did not complete its review within the

time allowed. Accordingly, the ALJ’s decision became the final

decision of the Commissioner, subject to judicial review.

Claimant then filed a timely action in this court, appealing

the denial of DIB and SSI benefits. Now pending are claimant’s

“Motion for Order Reversing Decision of the Commissioner”

(document n o . 11) and the Commissioner’s “Motion for Order

Affirming the Decision of the Commissioner” (document n o . 1 5 ) .

II. Stipulated Facts

Pursuant to Local Rule 9.1(d), the parties submitted a Joint

Statement of Material Facts which, because it is part of the

court record (document n o . 1 6 ) , need not be recounted in detail

2 here. Facts relevant to the decision will be 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

conclusive if supported by substantial evidence.1 See

(g); 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

1 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).

3 as it is supported by substantial evidence.”). See also

Rodriguez v . Secretary of Health & Human Services,

1 8 ,

222 (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

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 when 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)).

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

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, 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,

, 7

(1st Cir. 1982)). Nevertheless, 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 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,

5

, 2 (1st Cir. 1982). See also

(g). If the Commissioner shows the existence of other

jobs that claimant can perform, then the overall burden to

demonstrate disability remains with claimant. See Hernandez v .

Weinberger,

(1st Cir. 1974); Benko v .

Schweiker,

9 8 , 701 (D.N.H. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) claimant’s subjective claims of pain and

disability, as supported by the testimony of claimant or other

witnesses; and (3) 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 claimant is engaged in substantial gainful activity;

(2) whether claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents claimant from performing past relevant work; and

(5) whether the impairment prevents claimant from doing any other work.

6

. Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he 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

The ALJ concluded that Shaw was not disabled from November

1 5 , 2007, through the date of his decision. In reaching his

decision, the ALJ properly employed the mandatory five-step

sequential evaluation process described in

.

He first determined that Shaw had not been engaged in substantial

gainful employment since her alleged onset of disability. Next,

he concluded that Shaw has the severe impairment of degenerative

disc disease. Administrative Record (“Admin. Rec.”) 1 4 .

7 Nevertheless, the ALJ determined that the impairment did not meet

or equal one of the impairments listed in Part 4 0 4 , Subpart P,

Appendix 1 . Admin. Rec. 1 5 .

Next, the ALJ concluded that Shaw retained the residual

functional capacity to perform the full range of light work,

allowing for performing the postural functions occasionally.

Admin. Rec. 1 6 . The ALJ concluded, therefore, that Shaw is

capable of performing her past relevant jobs as a child care

worker, assembler, hand packager, counter attendant, icer, and

companion for the elderly. Admin. Rec. 1 7 .

Consequently, the ALJ concluded that Shaw was not

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

of his decision. Admin. Rec. 1 7 . Shaw, therefore, was deemed

ineligible for DIB and SSI benefits.

II. Claimant’s Challenges to the ALJ’s Decision

Shaw moves to reverse the Commissioner's decision, arguing

that the ALJ erred by failing to find that her bipolar disorder

was a serious impairment at Step 2 of the sequential analysis and

also erred by failing to properly evaluate her subjective mental

and physical symptoms. The Commissioner responds that because

the ALJ found a severe physical impairment at Step 2 no error

8 occurred and that the ALJ properly assessed Shaw’s subjective

complaints.

A. Step 2

Claimant alleges the ALJ erred at Step 2 in finding that her

mental impairment was not severe. “It is well established in

this circuit ‘that the Step 2 severity requirement is . . . to be

a de minimus policy, designed to do no more than screen out

groundless claims.’” Mohammad v . Astrue, N o . 10-cv-254-JL,

, at *7 (D.N.H. April 4 , 2011) (quoting McDonald v .

Secretary of Health & Human Services,

(1st

Cir. 1986). Here, the ALJ found that claimant had a “medically

determinable mental impairment of bipolar disorder.” Admin. Rec.

14. He concluded, however, that the impairment was “non-severe.”

In particular, he found that claimant’s mental impairment

caused “mild limitation” in the relevant functional areas: daily

living, social functioning, and concentration, persistence or

pace.

Although the ALJ’s Step 2 discussion of claimant’s

mental impairment is detailed and thorough, he erred in finding

that claimant had not met the de minimus showing. Claimant’s

medical records disclose that she was being treated (including

with medications) for bipolar disorder, anxiety, and depression,

and was hospitalized in 2009 for suicidal ideation. See

Mohammad,

, at *7 (de minimus burden at Step 2 was

9 met where claimant “was diagnosed . . . as having a seizure

disorder” and where “he was prescribed multiple anticonvulsant

medications.”).

But even accepting that the ALJ erred at Step 2 , that error

is harmless i f : the ALJ found at least one severe impairment,

Syms v . Astrue, Civil N o . 10-cv-499-JD,

, at * 1

(D.N.H. Sept. 8 , 2011); the ALJ then “continued through the

remaining steps,” id.; and the evidence does not “demonstrate how

the error would . . . change the outcome of the . . . case.”

Bard v . Astrue, N o . 1:10-cv-220-JAW,

, at *5

(D.Me. June 2 7 , 2011) (quotation omitted). Here, the ALJ at Step

2 found that Shaw suffered from the severe physical impairment of

degenerative disc disease. He then continued to proceed through

all remaining steps. In order for Shaw to prevail on her Step 2

argument, therefore, she must “point[…] to . . . evidence that”

the alleged Step 2 error relating to her mental impairment is

“outcome determinative.” Bard,

, at * 5 .

Although the ALJ did not discuss Shaw’s mental impairment in

his RFC determination, he did pose two hypotheticals to the VE

which included mental limitations. The VE’s testimony in

response to those hypotheticals reveals that the ALJ’s Step 2

error is outcome determinative only if Shaw’s mental impairment

10 in fact caused “marked” limitations. Compare McCaffrey v .

Astrue, Civil Action N o . 10-cv-01943-PAB,

, at *12

(D.Colo. Sept. 3 0 , 2011) (error at Step 2 not harmless where ALJ

failed to pose hypothetical to VE which included mental

limitations). The VE testified that “marked [mental]

impairment[s]” would preclude a person from performing “any

jobs.” Admin. Rec. 49-50. She also testified, however, that a

person with even “moderate [mental] impairments,” in combination

with claimant’s physical limitations, would still be able to do

the jobs the ALJ found Shaw could d o .

at 4 9 .

The critical question, then, is whether substantial evidence

in the record supports the ALJ’s determination that Shaw’s mental

impairment resulted in less than “marked” limitations. In

arguing that it does not, Shaw implicitly, and primarily,

challenges the ALJ’s assessment of her subjective complaints

regarding her mental limitations.2

B. Subjective Complaints

When a claimant demonstrates that her impairment could

reasonably be expected to produce the symptoms she alleges, the

2 Shaw’s brief does not explicitly state that she is challenging the ALJ’s determination that her subjective complaints about mental limitations are not wholly credible. But because that argument is implicit in Shaw’s overarching argument about the severity of her mental impairment, the court will address i t .

11 ALJ is required to determine the intensity, persistence, and

limiting effects of those symptoms.

(c). In

making that determination, the ALJ must evaluate the claimant’s

“statements about the effects of her symptoms . . . in light of

the medical evidence and other evidence such as precipitating and

aggravating factors, medications and treatment, and how the

symptoms affect the applicant’s daily living.” Syms v . Astrue,

Civil N o . 10-cv-499-JD,

, at * 4 (D.N.H. July 2 1 ,

2011) (citing

(c)(3)). Moreover, “[p]art of

the ALJ’s credibility determination necessarily involves an

assessment of a claimant’s demeanor, appearance, and general

‘believability.’” Guerin v . Astrue, Civil N o . 10-cv-421-SM,

, at *6 (D.N.H. June 2 4 , 2011).

1. Mental Impairment

Shaw asserts that her mental impairment results in marked

limitations. Most of the evidence she points to reflects her own

self-reporting to medical providers regarding her symptoms and

their effects, see Doc. N o . 1 2 , pgs. 5-8, and also includes her

testimony at the hearing, where she stated that she has anxiety

around people, nightmares, and PTSD from previous sexual abuse.

Admin. Rec. 38-41.

12 In discussing Shaw’s mental impairment at Step 2 , the ALJ

reviewed the evidence (including medical records and evidence of

Shaw’s daily activities), explained why he was according only

“minimal weight” to the opinion of Shaw’s treating psychologist,

Dr. Meghan Estey, and ultimately found Shaw’s allegations

regarding the severity of her mental limitations to be “less than

fully credible.” Admin. Rec. 1 5 . The ALJ relied on the opinion

of D r . Kathryn McNally, Psy.D., who met with Shaw and conducted

an independent psychological evaluation in January 2009. Dr.

McNally found that Shaw had no functional loss in daily

activities, social interactions, work related tasks, and work

related stress. D r . McNally also noted that Shaw was vague and

evasive regarding her symptoms and that her motivation for

treatment was poor. Admin. Rec. 1 5 . The ALJ also relied on the

opinion of Shaw’s examining physician, D r . John Walter, M.D.,

who, although noting that she “could have Post Traumatic Stress

Disorder based on her history,” Admin. Rec. 5 9 2 , “questioned

whether she suffered from bipolar disorder.” Admin. Rec. 1 5 . In

addition, D r . Walter described Shaw as being in good control of

her anxiety and depression. He noted that Shaw’s mental

impairments had been adequately treated since childhood with

counseling and medication. Admin. Rec. 422.

13 The ALJ also credited the State Agency physician, Edward

Martin, Ph.D., who opined in March 2009 “that the claimant’s

mental impairments were ‘not severe,’” in part because there was

“insufficient evidence to support her allegation.”

at 1 5 .

The ALJ also relied on Shaw’s own reports of daily activities,

noting that “by the claimant’s own report she is able to

function.”

at 1 5 . Although Shaw “becomes anxious

interacting with others and prefers to stay at home, she does

grocery shop, socialize, and drive; and she is able to manage her

finances.”

The ALJ also acknowledged Shaw’s hospitalization

for suicide “attempt”3 in July 2009 but noted that she was

“successfully treated” following that hospitalization. Admin.

Rec. 1 5 .

Lastly, the ALJ explained why he gave “minimal weight” to

the July 2009 opinion of Shaw’s treating psychologist, D r . Estey.

Dr. Estey opined that Shaw is unable to work because of mental

illness. The ALJ found that D r . Estey’s opinion “appears to be

based solely upon the subjective complaints of the claimant whom

I find to be less than fully credible.” Admin. Rec. 1 5 . He also

3 Shaw’ brief does not explicitly state that she is challenging the ALJ’s determination that her subjective complaints about mental limitations are not wholly credible. But because that argument is implicit in Shaw’s overarching argument about the severity of her mental impairment, the court will address i t .

14 found significant the fact that D r . Estey had been treating Shaw

“a mere three months prior to her July 2009 opinion.”

Shaw complains that the ALJ ignored evidence which supports

her claim of marked mental limitations. Specifically, she notes

that the ALJ did not discuss a Global Assessment of Functioning

(GAF) score of 45 in 2010 and the April 2010 opinion of D r .

Pamela Olsson, M.D., that Shaw is unable to work “at this time”

due to “depression and anxiety.” Admin. Rec. 495. “A GAF score

of 45 indicates serious symptoms or impairment in social or

occupation functions.” Marcotte v . Callahan,

(D.N.H. 1997). Although a GAF may be of “considerable help”

in determining a claimant’s RFC, it is not “essential.” Howard

v . Commissioner of Social Security,

(6th Cir.

2002). Indeed, “[a] GAF score, standing alone, does not

necessarily indicate an inability to work or to perform specific

work-related functions.” LaFontaine v . Astrue, N o . 1:10-cv-527-

JAW,

, at *4 (D.Me. Sept. 2 5 , 2011). Here, the

ALJ was entitled to consider the GAF score of 45 in the context

of all of Shaw’s medical records, some of which indicated GAF

scores of 50/55. A GAF score above 50 indicates moderate

symptoms or limitations. See Marcotte,

8 8 , n.4.

15 With respect to D r . Olsson’s opinion that Shaw is unable to

work, the Commissioner correctly points out that D r . Olsson’s

letter expressing that opinion is unaccompanied by treatment

notes.4 See

(“The better an explanation a

source provides for an opinion, the more weight we will give that

opinion.”). Without more, the ALJ was entitled to discount the

opinion - an opinion on a matter reserved for the Commissioner.

See Arroyo v . Secretary of Health & Human Services,

2 ,

89 (1st Cir. 1991) (“The ALJ was not required to accept the

conclusions of claimant’s treating physicians on the ultimate

issue of disability.”).

In sum, although the record establishes that Shaw was

treated numerous times for a mental condition, there is

substantial evidence in the record to support the ALJ’s

conclusion that her mental impairment has not resulted in marked

limitations.

4 The treatment notes from D r . Olsson in the record consist of one dated two months earlier (in which the doctor questioned whether Shaw had bipolar disorder, stating that her symptoms were “more consistent with depression and anxiety”), and one describing D r . Olsson’s examination of Shaw in June 2009 during her hospitalization for suicidal ideation. See Admin. Rec. 6 4 2 , 460.

16 2. Physical Impairment

In assessing Shaw’s residual functional capacity, the ALJ

concluded that she retained the ability to perform the full range

of light work, “allowing for performing the postural functions

occasionally.” Admin. Rec. 1 6 . The ALJ found that Shaw’s

medically determinable impairment of degenerative disc disease

could reasonably be expected to cause the symptoms she alleged.

He further found, however, that Shaw’s “statements

concerning the intensity, persistence and limiting effects of

these symptoms are not credible to the extent they are

inconsistent with [the ALJ’s] residual functional capacity

assessment.”

Shaw challenges this finding on the ground

that the ALJ failed to properly assess the credibility of her

subjective complaints of pain relating to problems in the

cervical and lumbar regions of her spine.

In 2010, after having received non-surgical pain management

treatment for several years, Shaw underwent two separate

surgeries — a cervical decompression and fusion and a lumbar

fusion. She alleges that she continues to experience disabling

pain despite the surgeries. “In evaluating a claimant's

subjective complaints of pain, the adjudicator must give full

consideration to all of the available evidence, medical and

other, that reflects on the impairment and any attendant

17 limitations of function.” Avery,

9 . Here, the ALJ

acknowledged Shaw’s subjective complaints of pain and her

allegation that “epidural steroid injections and neck and back

surgeries” have not been “helpful.” Admin. Rec. 1 6 . The ALJ

found that Shaw “does currently appear to have mild symptoms

related to her back impairment.”

He further found, however,

that her statements about the intensity, persistence, and

limiting effects of her pain were “not credible.”

He noted

that Shaw’s activities of daily living do not support her

allegation of disabling pain.

.

The record also shows that, one year following Shaw’s

cervical decompression and fusion surgery, her doctor reported

that Shaw was “reasonably doing well with the cervical spine

. . . .” Admin. Rec. 654. Moreover, Shaw did not receive any

treatment or therapy for her cervical spine in the year following

the surgery. With respect to her lumbar surgery, Shaw was

observed, one day after that operation, “sitting on a bed side

chair, comfortably, and eating her dinner.” Admin. Rec. 648. It

was reported by her provider that “overall back pain is easier

than prior to surgery, despite post-op surgical pain.” She was

able to ambulate well with a walker and was discharged.

An

x-ray examination of her spine showed that the hardware was

18 intact and there were no complications or misalignments. Admin.

Rec. 649.

At most, there is a conflict in the record as to whether

Shaw experiences disabling pain. The ALJ was obligated to

resolve that evidentiary conflict, and did so in a manner that

finds substantial support in this record. Irlanda Ortiz,

. The court finds, therefore, that the ALJ’s

conclusion that Shaw’s pain was not disabling, and his subsidiary

finding that her statements regarding her pain were not wholly

credible, are supported by substantial evidence.

Conclusion

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

decision of the Commissioner (document n o . 11) is denied. The

Commissioner's motion to affirm his decision (document n o . 15) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J./McAuliffe Jnited States District Judge December 16, 2011

cc: Christopher J. Seufert, Esq. Kelie C. Schneider, Esq. Gretchen L. Witt, AUSA

19