Mounce v. SSA CV-10-560-PB 11/2/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis Mounce

v. Civil N o . 10-cv-560-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Dennis Mounce seeks judicial review of a decision by the

Commissioner of the Social Security Administration denying his

application for disability insurance and supplemental security

income benefits. Because the Administrative Law Judge who

considered Mounce’s application failed to properly assess his

pain complaints, I reverse the Commissioner’s decision and

remand the case for further proceedings consistent with this

Memorandum and Order.

I. BACKGROUND1

A. Procedural History

1 Except where otherwise noted, the background information is drawn from the parties’ Joint Statement of Material Facts (Doc No. 1 1 ) . See LR 9.1(b). I cite to the administrative record with the notation “Tr.” On April 1 2 , 1996, Dennis Mounce was approved for

disability insurance benefits (“DIB”). He returned to work in

March 1998, and again applied for DIB in 2007. That application

was denied on June 2 9 , 2007. On June 1 6 , 2008, he applied for

both DIB and Supplemental Security Income (“SSI”) benefits, and

was denied. He requested an administrative hearing, and on July

6, 2010, Administrative Law Judge (“ALJ”) Thomas Merrill issued

a decision finding Mounce not disabled. The ALJ found that he

retained the residual function capacity (“RFC”) to perform work

existing in significant numbers in the national economy. The

Decision Review Board affirmed the ALJ’s decision on October 7 ,

2010.

B. Personal Information

Mounce was 50 years old as of the date of his

administrative hearing. He completed the 8th grade, and later

obtained a GED. His past relevant work included work as a

carpenter, restoration worker, catastrophe adjuster, and

property adjuster. He alleges that the onset date of his

disability was January 7 , 2004.

C. Medical Evidence

2 On December 2 7 , 1994, Mounce informed Dr. Clifford Levy of

Concord Orthopaedics that he had injured his left shoulder. He

was treated with anti-inflammatory medication and physical

therapy. His injury did not improve. On February 6, 1995,

Mounce complained to Dr. Levy of significant neck pain going

towards both shoulders. X-rays revealed moderate cervical

spondylosis and an MRI scan showed a central disk herniation at

C5-6.

On March 3 0 , 1995, Dr. Douglas Moran performed surgery to

repair Mounce’s left shoulder. On May 2 4 , 1995, Mounce reported

that he was still having neck pain, and Dr. Moran again noted

his diagnosis of cervical spondylosis with disk herniation at

C5-6. In July 1995, Dr. Moran stated that Mounce’s shoulder was

not going to feel better unless he could improve his range of

motion. On August 2 1 , 1995, Dr. Moran allowed Mounce to return

to some work involving lifting of no more than 5 pounds. Dr.

Moran noted that Mounce’s neck was still causing problems.

In March 1996, Dr. Levy recommended an anterior cervical

discectomy with allograft upon review of X-rays showing

degenerative changes and disk herniation at C5-6. The procedure

was performed on April 4 , 1996. In July 1996, Dr. Moran

3 maintained his light duty recommendation with regard to Mounce’s

left arm, and found an impingement type tendency that affected

his right shoulder. In November 1996, Dr. Moran found

impingement, bursitis, and rotator cuff tendinitis in his right

shoulder, and called the injury an overuse syndrome. In March

1997, Dr. Moran noted that Mounce had some impingement bursitis

and rotator cuff tendinitis in his right shoulder. He

classified the condition as a probable bilateral shoulder

pathology with probable subacromial scarring and a possible

residual AC tear in Mounce’s left shoulder and impingement and

rotator cuff tendinitis in the right shoulder. By July 1997,

Dr. Moran responded to Mounce’s complaints of sore shoulders and

hands by stating that his right shoulder probably had a labral

tear and subacromial pain.

On August 1 3 , 1997, Mounce underwent surgery for his right

shoulder. That December, he returned to Dr. Levy complaining of

increasing symptoms in his neck. By May 1998, Dr. Moran noted

that Mounce had AC joint and rotator cuff pain. Dr. Moran

determined that intervention was unnecessary, although described

the pains as real symptoms. In November 1999, Mounce complained

to Dr. Moran that his left shoulder felt like it had before

4 surgery. X-rays showed a well-seated AC joint, a slight

clavicular overgrowth and a flat acromin. Dr. Moran stated that

Mounce would have occasional shoulder pain and should continue

his exercises, but that further surgery was not appropriate.

Nearly six years later, on May 1 6 , 2003, Mounce returned to

Concord Orthopaedics complaining of neck pain. On examination,

Andrew Scala, PA, observed that Mounce had pain predominantly in

the left side of his neck and had a tender left upper trapezius.

At a visit one month later, Mounce had improved.

On January 8 , 2004, Mounce went to the emergency room

complaining of an injury to his right knee that occurred while

driving a snowmobile. He was diagnosed with a right knee

sprain.

On January 1 6 , 2004, Dr. Moran saw Mounce about his new

knee problem. At that time, Mounce was not taking medication

for the knee. In light of his observations, the doctor thought

the injury was a medial meniscal tear. A right knee MRI,

performed on January 2 2 , 2004, revealed moderate-sized joint

effusion, and a subtle radial tear of the posterior horn of the

medial meniscus.

5 At his next appointment with Dr. Moran, on February 6,

2004, Mounce was limping terribly, and the doctor advised him to

have knee surgery. On February 1 3 , 2004, Mounce underwent right

knee surgery. One month later, Mounce advised Dr. Moran that he

was very happy to have weaned himself off his crutches and that

he felt pretty good. Dr. Moran noted that Mounce “is doing

spectacularly well, but it’s early.” Tr. at 274. The doctor

observed that he was not in acute distress, he was

neurovascularly intact, his hip and thigh were nontender, his

flip test and straight leg raising were negative, and he had

full extension to 130 degrees of flexion. Dr. Moran informed

him that although the microfracture technique did well at

preserving the joint, it would not cure the significant

arthritis in his knee. Dr. Moran advised Mounce not to walk for

exercise, but told him that he should bike or swim and that he

could engage in resistive strength workouts. Dr. Moran

concluded that there was “a lo[t] to accomplish here but we’re

off to a very good start.” Mounce next saw Dr. Moran on May 2 4 ,

2004, and described his condition as fair.

The next instance of relevant treatment that is uncontested

by the parties occurred on February 2 1 , 2008, when Mounce went

6 to see Dr. Anthony Marino about his knee pain.2 Dr. Marino noted

that he had shown improvement a year or two ago with Synvisc

injections. Dr. Marino also noted that Mounce was significantly

overweight and had a varus alignment of his knees with classic

degenerative alignment. X-rays showed medial compartment

arthritis with spurring and patella femoral arthritis. Dr.

Marino diagnosed Mounce with bilateral knee arthritis.

On Febrary 2 6 , 2008, Mounce had a routine physical exam.

Christopher Schwieger, PA, noted that Mounce had a history of

osteoarthritis, left and right shoulder surgery, C5-6 fusion,

intermittent anxiety, fatigue, obesity, and chronic knee pain.

Schwieger also noted Mounce’s current course of Synvisc

injections.

On March 4 , 2008, Schwieger noted that Mounce would be

receiving weekly bilateral knee Synvisc injections over the next

three weeks. Mounce returned for those injections on March 6,

1 4 , and 2 1 . By March 3 1 , Mounce’s pain and discomfort had not

improved, and he received bilateral Euflexxa injections.

2 Whether Mounce received treatment between May 2004 and February 2008, and whether such treatment is part of the record, are subjects of contention between the parties. 7 On June 2 5 , 2008, Mounce returned to Concord Orthopaedics

complaining of neck pain and weakness in his arms and hands that

he stated had been chronic since his surgery. X-rays revealed

degenerative disk changes with moderate osteophyte formation at

the C6-7 level, and Mounce was diagnosed with C6-7 degenerative

disk disease.

A July 7 , 2008 MRI showed a new small right paracentral

disk protrusion indenting the right cord at C4-5 which was

mildly stenotic to a broad disk bulge. The MRI showed

uncovertebral hypertrophy without significant neural foraminal

narrowing, fusion at C5-6, and a minimal disk bulge at C6-7.

Two days later, Mounce complained to Dr. Levy that he felt

limited and was unable to do much of anything due to the pain in

his neck, shoulders, and knees. X-rays revealed degenerative

changes at C6-7 and Dr. Levy found that Mounce had a limited

range of motion, but was not tender. Dr. Levy also noted that

Mounce felt he did not have the financial means to pursue

treatment.

On July 2 5 , 2008, Mounce saw Dr. Moran for his shoulder

pain and weakness. Mounce told the doctor that overall, his

shoulders were weak compared to their state prior to 2003. He

8 also reported that his shoulder had improved after surgery and

that the improvement persisted for more than 10 years until he

sustained the cervical injury. Although he underwent physical

therapy following the surgical procedures and felt the shoulders

were doing quite well, he stated that he was unable to do

anything without discomfort. After conducting a number of

tests, Dr. Moran’s impression was that Mounce had bilateral

shoulder mild impingement with rotator cuff weakness. Dr. Moran

recommended physical therapy, but Mounce was unsure whether he

was financially able to pursue that option.

On September 8 , 2008, Mounce followed up on his shoulder

pain and weakness with Dr. Moran and his physician’s assistant,

Nina Joe. They recommended physical therapy, but Mounce

explained that he could not pursue physical therapy until he

resolved his Workers’ Compensation claims. Mounce’s shoulders

felt similar to the way they had previously, though a bit

achier. After examination, his treatment providers declared

that he had bilateral shoulder impingement with rotator cuff

weakness. They again recommended physical therapy and increased

use of ice and anti-inflammatories.

9 Mr. Scala had referred Mounce for a Functional Capacity

Evaluation, which Mounce attended on September 1 7 , 2008. The

physical therapist, Rachel Heath, noted that testing and

observation suggested the presence of submaximal effort, by

which she did not mean to make implications about his intent,

but rather meant to indicate that Mounce could, at times,

physically do more than he demonstrated during the day of

testing. She concluded that Mounce’s ability to resume full-

time work was poor to fair, noting that he exhibited

psychophysical limitations. She found that he demonstrated an

ability to function 4 hours per day, 5 days per week, at a light

capacity at a job that accommodated his need for positional

changes every 15-30 minutes. She further concluded that, based

on a 4-hour day, he could frequently sit, reach, and engage in

fine motor activities; he could occasionally bend, kneel, squat,

climb, stand, and walk; and he could lift/carry a maximum of 20

pounds occasionally and 10 pounds frequently.

Mounce returned to Dr. Moran on September 3 0 , 2008, for his

right knee. Although Synvisc had worked well in the past,

Euflexxa was not effective and he was experiencing severe pain.

X-rays revealed a considerable loss of joint space in the medial

10 joint line of the patella femoral joint. Mounce’s knee was

injected with a combination of Lidocaine, Marcaine, and Depo-

Medrol, which Dr. Moran believed would help in the short term.

Dr. Moran noted that nothing surgical would make Mounce’s knee

feel better in the long term because surgery, although it could

cure his meniscal tear, could not cure his arthritis. Dr. Moran

concluded that Mounce had to lose weight. The doctor noted that

doing so would be challenging because he could not “exercise a

lot on that knee,” but when Mounce felt better, some exercises

would be incorporated.

On October 1 0 , 2008, Mounce saw Dr. David Nagel for a

translaminar epidural to address his neck pain. The doctor

noted that Mounce’s neck had been bothering him since 2003, with

pain similar to what he experienced prior to the operation.

On October 1 4 , 2008, Mr. Scala completed a Medical Source

Statement of Ability to do Work-Related Activities. He stated

that Mounce had a maximum ability to lift and carry, on an

occasional basis, less than 10 pounds. He further stated that

Mounce needed the opportunity to shift his position at will and

to take unscheduled breaks. He determined that Mounce was able

to sit and work for 20 minutes at a time, stand for 20 and walk

11 for 1 0 . In an 8-hour day, he could sit for a total of 4 hours,

stand for a total of 2 , and walk for less than 1 . His maximum

combined ability to sit, stand, and walk in an 8-hour day was 4

hours. Scala felt that Mounce would need to take steps to rest

to relieve pain or take breaks for 10 minutes after 20 minutes

of activity. In an 8-hour day, Scala found Mounce capable of

reaching in any direction and pushing and pulling for less than

2 hours, handling for about 2 hours, and using his hands to feel

or finger for about four hours. He found that Mounce was able

to climb stairs and ramps for less than 2 hours and unable to

climb ladders, balance, stoop, crouch, kneel, or crawl. Scala

noted that Mounce’s pain and disability would increase with

excessive bending, lifting, twisting, or prolonged sitting,

standing, or walking. He opined that Mounce’s limitations had

been present since December 2003 and would cause him to be

absent from work more than 3 times a month.

On October 2 3 , 2008, Dr. Nagel gave Mounce a cervical

epidural corticosteroid injection to treat his neck pain.

Mounce returned on November 2 0 , 2008, stating that the first

injection had resulted in some slight improvement. He returned

12 again on December 1 8 , 2008 for a third epidural, but noted that

the first two had not caused substantial improvement.

On November 2 5 , 2008, Mounce saw Darlene Gustavson, Psy.D.,

for a disability evaluation. She did not observe any gait or

posture abnormalities, and stated that he ambulated

independently. Mounce’s fine and gross motor skills appeared to

be intact, and the doctor noted that he was able to participate

in a sixty-minute interview without pain complaints. She

observed his mood as being calm with mild irritation. Mounce’s

language comprehension appeared intact, his affect was

appropriate, he laughed and smiled at appropriate times during

the interview, his thought processes were logical and directed,

his thought content was normal, there was no evidence of

psychosis, he denied current suicidal ideation, his judgment and

insight were intact, and his intellectual functioning was

estimated in the average range. He achieved a score of 27/30 on

his Mini-Mental Status Examination.

Dr. Gustavson described Mounce’s social life as active. A

typical day involved waking up around 9:00 a.m., having coffee,

napping, watching TV, letting the dog in and out, reading

emails, searching the internet, visiting family, driving his

13 wife places, and going to bed at 10:00 p.m. He took his

medication and attended appointments. He seldom completed

household chores or cooked. His sleep was disrupted by pain and

possibly sleep apnea. Dr. Gustavson diagnosed Mounce with

chronic adjustment disorder with depressed mood. She also made

a diagnosis of chronic pain. She recommended that he begin

mental health treatment.

On January 1 2 , 2009, Mounce saw Dr. Levy and complained of

issues with his neck, “as well as everywhere else.” The doctor

conducted a nonfocal examination, and had nothing to offer other

than the suggestion that Mounce get a primary care provider to

prescribe medication.

On February 1 0 , 2009, Mounce saw Dr. Moran for a follow-up

regarding his right knee. Although Mounce’s left knee had

recovered well from microfracture surgery, he was experiencing

increased pain in his right knee. Dr. Moran felt that Mounce

was going through a difficult time and could not have surgery,

and so he injected the knee with a combination of Lidocaine,

Marcaine, and Depo-Medrol.

Mounce returned to Dr. Moran on April 2 8 , 2009, complaining

that he continued to have pain in the medial aspect of his right

14 knee. An X-ray showed a considerable amount of degenerative

disease in the medial compartment of both knees, with the right

knee worse than the left, and some spurring in the medial

compartment. He concluded that Mounce was in a “tough spot,”

being only 49 years old, yet afflicted with arthritis in both

knees, varus knees, and meniscal pathology. He noted that an

arthroscopy of the right knee would be helpful, but only to a

degree. He advised Mounce to lose weight, take Aleve, and avoid

squatting and kneeling. He gave Mounce another knee injection.

On May 4 , 2009, Mounce consulted with Dr. Lundy of the

Dartmouth-Hitchcock Clinic for complaints of male hypogonadism,

degenerative changes in his knees, and his weight. Dr. Lundy

recommended a test of Mounce’s testosterone level.

On June 2 6 , 2009, Mounce returned to Concord Orthopaedics

for a repeat cortisone injection for his right knee. The

preceding 24 to 48 hours had been quite painful for him, and ice

and anti-inflammatories provided only minimal relief. Physical

examination revealed significant tenderness throughout the

entire right knee. M s . Joe’s impression was right knee

degenerative joint disease, and she administered an injection.

15 She advised Mounce to continue using ice and anti-inflammatories

and to increase activities as he felt comfortable.

Mounce saw Dr. Lundy for a physical on September 2 , 2009.

The doctor noted that Mounce claimed he was very lethargic and

unable to exercise as a result of his cervical and knee

complaints. Dr. Lundy diagnosed him with morbid obesity,

degenerative disk disease of the spine and osteoarthritis of the

knees, pre-diabetes/impaired glucose tolerance, and male

hypogonadism.

On September 2 4 , 2009, both of Mounce’s knees were X-rayed.

His left knee showed advanced degenerative arthritis and his

right showed advanced osteoarthritis. Degenerative changes of

the left knee appeared more substantial than the right knee.

Dr. Gonzalez reviewed the X-rays on October 2 1 , 2009, injected

both knees, and assessed Mounce as suffering from bilateral knee

arthritis. The doctor recommended maximizing non-operable

therapy for as long as possible, given Mounce’s morbid obesity

and age. He advised Mounce to reduce his weight to a BMI of

less than 4 0 , discussed options at the Clinic’s bariatric

program, and made arrangements for further Synvisc injections.

16 Mounce again met with Dr. Lundy on December 2 2 , 2009, and

complained of his neck pain and requested referral to a spine

specialist. Dr. Lundy referred Mounce for a cervical MRI.

On April 1 2 , 2010, Mounce again consulted Dr. Lundy for his

neck pain and weight issues. Dr. Lundy noted that Mounce was

concerned about being overweight and wanted a referral for

bariatric surgery, but that “[a]side from this, he seems to be

feeling well.” In his assessment, Dr. Lundy wrote that Mounce

had cervical degenerative disk disease and was overweight. He

provided Mounce with a referral for a bariatric evaluation.

On May 1 1 , 2010, Mounce had additional injections for his

knees, as recommended by Dr. Gonzales.

On May 1 8 , 2010, Dr. Lundy responded to an inquiry from

Mounce’s attorney, Elizabeth Jones. He explained that he had

not formally evaluated Mounce on his ability to perform the

work-related activities listed on the medical source statement.

He further stated that, assuming there had been no change in

Mounce’s status since the FCE and PA Scala’s 2008 evaluation, he

deferred entirely to those evaluations. In reviewing the

record, he opined that Mounce’s overall clinical status had not

17 improved since the FCE and 2008 evaluation, and that most likely

his ability to do work had not improved.

D. Administrative History

In a function report dated August 1 5 , 2008, Mounce

described his daily routine. He stated that he wakes up at

about 8:00 and goes to his recliner where he has coffee and

breakfast while watching television. He showers, dresses, lets

the dog in and out, and relaxes in the recliner with his laptop,

reading news and emails until he dozes off to sleep for one

hour. When he awakes, he continues what he was doing, tends to

the dog, eats lunch in the recliner, and watches television

until he dozes off again. He then takes a walk in the garden

for 20 minutes and at 2:00 p.m., often for about two hours, he

goes for a drive to see a friend, or goes shopping with his

wife, or goes to an appointment. When he returns, he has dinner

in the recliner, checks emails, watches television, and dozes

off to sleep. He goes to bed at 10:00 p.m.

In his function report, Mounce responded to a number of

questions pertaining to his ability to engage in normal tasks.

He stated that his knee, neck, and shoulder pains wake him up at

night and he has difficulty falling back to sleep. He is unable

18 to do any household chores or yard work, though he can drive a

car on a daily basis, and once a week he spends an hour shopping

with his wife, where he needs a cart on which he can lean. His

social activities consist of talking, reading the newspaper,

watching television, drinking coffee, and several times a week

he drives somewhere for an hour or two. He does not have a

social life because his friends continue to engage in activities

that he is unable to perform.

Describing his injuries and conditions in quantitative

terms in the report, Mounce stated that he cannot lift more than

5 pounds, cannot squat, kneel, or stand for very long, cannot

reach or walk for more than 15 minutes or sit for more than 20

minutes. Bending hurts, and he can walk for 10 minutes so long

as he is able to rest for 10 minutes and is later able to have

an afternoon nap.

On October 2 9 , 2008, Dr. Matt Masewic, a non-examining,

non-treating medical consultant for the Disability Determination

Service, prepared a Physical Residual Functional Capacity

Assessment. He opined that Mounce was able to do the following:

occasionally lift 20 pounds; frequently lift 10 pounds; stand

and/or walk 3 hours in an 8-hour day; sit for about 6 hours;

19 push and pull on an unlimited basis; occasionally engage in all

postures; and perform all manipulations on an unlimited basis,

with the exception of reaching overhead, which he could perform

occasionally.

Dr. Masewic also described Mounce’s ailments. He wrote

that Mounce has moderately severe degenerative joint disease of

the knees, which, in conjunction with his morbid obesity,

significantly affects his functional capacity in the area of

ambulation. He also wrote that Mounce has degenerative disk

disease of the cervical spine with residual pain from a fusion

that, in conjunction with bilateral impingement syndromes and

weak rotator cuffs, significantly affects his functional

capacity. Dr. Masewic further noted that Mounce’s Activities of

Daily Living form was not complete, but indicated that he was

able to prepare light meals, provide self-care, use a laptop,

drive, shop, and walk for 10 minutes without a break. He

concluded that although Mounce’s functional capacity was

indefinitely affected by his conditions, Mounce did not have a

listing level impairment.

E. Administrative Proceedings

20 On June 2 1 , 2010, a hearing was held before ALJ Thomas

Merrill. Mounce testified that he had been suffering from

serious neck, bilateral shoulder, and bilateral knee pain, as

well as fatigue caused by his pain. He stated that after his

knee injury in 2004, a combination of all his injuries caused

him to be unable to work any longer. Mounce’s wife testified as

well, stating that she and her husband did not presently have

health insurance, but did have it sporadically. She explained

that where there were gaps in Mounce’s treatment, it was because

they had no insurance. During the times that they had health

insurance, she testified that Mounce would obtain treatment.

The ALJ denied Mounce’s claims for DIB and SSI benefits on

July 6, 2010. He found that Mounce had a number of severe

impairments -- degenerative joint disease in his knees;

degenerative disk disease in his cervical spine; bilateral

shoulder pain; and obesity –- but did not have a listing level

impairment. The ALJ determined that Mounce had the RFC to

perform light work, with certain limitations, on a full-time

basis.

In arriving at his RFC determination, the ALJ evaluated the

credibility of Mounce’s assertions of pain and its limiting

21 effects, and the opinion evidence of Mounce’s medical providers.

The ALJ found that Mounce’s assertions of pain were not credible

to the extent that they conflicted with the RFC. In explaining

his finding, the ALJ focused on Mounce’s lack of complaints over

long periods of time. In addressing the opinion evidence, the

ALJ relied on the opinion of the agency physician, as supported

by Mounce’s actual performance on the FCE conducted by M s .

Heath. He discounted M s . Heath’s view that Mounce could work

only part-time, gave little weight to the opinion of Mr. Scala,

and gave no independent weight to the opinion of Dr. Lundy,

whose opinion had deferred to the findings of M s . Heath and Mr.

Scala.

Based on his determination of Mounce’s RFC, the ALJ

determined that Mounce was able to perform his past relevant

work as an insurance adjuster, and was not disabled. The

Decision Review Board affirmed the ALJ’s decision on October 7 ,

2010.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

22 and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v . Comm’r of Soc. Sec.,

(1st Cir. 2000).

The findings of fact made by the ALJ are accorded deference

so long as they are supported by substantial evidence.

Substantial evidence to support factual findings exists “‘if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.’”

Ortiz v . Sec’y of Health and Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriquez v . Sec’y of

Health and Human Servs.,

(1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v . Chater,

1 , 35 (1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence on the

23 record. Ortiz,

. It is the role of the ALJ, not

the court, to resolve conflicts in the evidence.

The ALJ follows a five-step sequential analysis for

determining whether an applicant is disabled.

, 416.920. The applicant bears the burden, through the

first four steps, of proving that her impairments preclude her

from working. Freeman v . Barnhart,

(1st Cir.

2001). At the fifth step, the Commissioner determines whether

work that the claimant can d o , despite her impairments, exists

in significant numbers in the national economy and must produce

substantial evidence to support that finding. Seavey v .

Barnhart,

, 5 (1st Cir. 2001).

III. ANALYSIS

Mounce contends that the ALJ erroneously found his claims

of disabling pain not to be credible. Symptoms such as pain can

“sometimes suggest a greater severity of impairment than can be

shown by objective medical evidence alone.”

(c)(3), 416.929(c)(3); see SSR 96-7p,

, at

*3 (July 2 , 1996). An individual’s statements about his

symptoms of pain, however, are insufficient by themselves to

24 establish that an individual is disabled. SSR 96-7p,

, at * 2 . In evaluating symptoms such as pain, the ALJ

must engage in a two-step analysis.

First, he must

consider whether the claimant is suffering from “an underlying

medically determinable physical or mental impairment . . . that

could reasonably be expected to produce the individual’s pain or

other symptoms.”

If the claimant meets that threshold, the

ALJ moves to the second step:

the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work activities. For this purpose, whenever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record.

At the first step, the ALJ found that Mounce’s medically

determinable impairments could reasonably be expected to cause

the symptoms alleged by Mounce. Tr. at 1 2 . That finding is not

challenged. At the second step, the ALJ found that Mounce’s

“statements concerning the intensity, persistence and limiting

25 effects of these symptoms are not credible to the extent they

are inconsistent with the [ ] residual functional capacity

assessment.”

Mounce argues that the ALJ ignored and

misinterpreted evidence in reaching his credibility

determination. I agree.

First, the ALJ found significant that in March 2004, Dr.

Moran noted that Mounce was “doing spectacularly well” after his

right knee surgery.

The record reveals, however, that Dr.

Moran told Mounce that he could not even walk for exercise, and

he noted that Mounce had significant, incurable arthritis in his

knee. Tr. at 274. The ALJ lifted the “spectacularly well”

language from Dr. Moran’s notes without a consideration of the

context of those remarks.

The second error, of a much larger magnitude, was the

manner in which the ALJ addressed the lack of complaints by

Mounce about his knees, which he found indicative of the non-

severe nature of Mounce’s pain. Although the ALJ did not

explain with specificity how he used the evidence he cited to

reach his conclusion, approximately half of his discussion of

Mounce’s credibility on the knee pain issue concerned his lack

of complaints. See Tr. at 12-13. The ALJ focused in particular

26 on his finding of two long gaps during which Mounce did not

speak to medical providers about his knees. The lengthy gaps

are not supported by substantial evidence, however, and the ALJ

ignored the explanation for why shorter gaps might exist.

The ALJ found a nearly four-year gap -- from May 2004 until

February 2 1 , 2008 –- during which Mounce did not even “mention”

knee pain. Tr. at 1 2 . In the midst of that period, however,

Dr. Marino administered a course of treatment and injections for

Mounce’s knee pain. Mounce failed to timely include in the

record copies of Dr. Marino’s treatment notes from April and May

2005, and thus they were unavailable for the ALJ’s consideration

and cannot be the basis for a reversal. See Mills v . Apfel,

, 5-6 (1st Cir. 2001). 3 Nonetheless, the record reviewed

by the ALJ included numerous mentions that Mounce had complained

of knee pain and received treatment from Dr. Marino predating

February 2008. For example, Dr. Marino’s February 2 1 , 2008

notes state that Mounce had shown improvement after knee

injections a year or two prior, and Mr. Scala’s June 2 5 , 2008

notes state that Mounce saw Dr. Marino for treatment of his

chronic knee pain in 2005. Insofar as the ALJ relied on the

Mounce does not allege good cause for the delay. 27 understanding that Mounce did not even mention his knee pain for

four years, his conclusion is belied by facts in the record and

unsupported by substantial evidence.

In regard to this four-year gap, the ALJ buttressed his

reasoning by noting a series of medical examinations between

2004 and 2008 during which Mounce did not mention his knee pain.

Tr. at 1 2 . Although the lack of complaints at these

examinations is probative to a degree, especially the December

1 4 , 2004 examination where Mounce did not note any past medical

history or medications, the ALJ omitted from his discussion the

fact that all the examinations were for specific, acute

problems. Mounce visited the emergency room three times, for a

skin rash, for a swollen tongue, and for strep throat. The only

other examination prior to February 2 1 , 2008, was a 2007 visit

to the Dartmouth-Hitchcock Clinic when he underwent a

colonoscopy and had polyps removed. At these types of visits,

one would not expect a patient to complain of unrelated aches

and pains.

The ALJ next addressed a second gap, finding that after his

February 2 1 , 2008 mention of pain, Mounce did not complain of

knee pain again until September 2008. The record directly

28 contradicts the ALJ’s finding. Mounce mentioned his chronic

arithritis and knee pain, as well as his ongoing Synvisc

injections, on February 2 6 . Again on March 4 , Mounce discussed

his knee pain, and Mr. Schwieger made a note that Mounce would

be having Synvisc injections in both knees in each next three

weeks. Mounce received knee injections on March 6, 1 4 , and 2 1 .

A few months later, on June 2 5 , 2008, Mounce told Mr. Scala that

despite those Synvisc injections and subsequent Euflexxa

injections, he was continuing to have problems with his knees.

The finding that Mounce did not complain of knee pain for

approximately 7 months following February 2 1 , 2008 is

unsupported by substantial evidence.

In addition to contesting the factual basis for both gaps

found by the ALJ, Mounce contends that any remaining, shorter

periods wherein he did not complain o f , or receive treatment

for, knee pain are due to his lack of insurance. At the

administrative hearing, his wife testified that she and Mounce

were only sporadically insured. She explained that while they

were uninsured Mounce could get some free treatment from

Dartmouth-Hitchcock, but he could not get all the treatment he

needed. Before drawing “any inferences about an individual’s

29 symptoms and their functional effects from a failure to seek or

pursue regular medical treatment,” an ALJ must “consider[] any

explanations that the individual may provide.” SSR 96-7p,

, at * 7 . One such explanation is that “[t]he

individual may be unable to afford treatment.”

at * 8 .

Although the ALJ was entitled to find that a lack of insurance

was insufficient to explain the dearth of complaints, the

opinion does not reveal that he even considered the explanation.4

Because the ALJ ignored and misrepresented record evidence,

his credibility findings are not based on substantial evidence.

Had the ALJ found that Mounce’s knee pain precluded him from

working on more than a part-time basis, there would be no work

available for Mounce, according to a hypothetical asked of the

testifying vocational expert. Because the ALJ’s reliance on

erroneous information may therefore have prejudiced Mounce’s

claim, the case must be remanded for further proceedings. In

light of this result, I need not consider Mounce’s additional

arguments pertaining to the ALJ’s evaluation of opinion evidence

4 The ALJ did note that Mounce declined physical therapy for his neck and shoulders because he was waiting for Workers’ Compensation to cover the cost. The ALJ does not mention, however, financial difficulties or a lack of insurance at any other point in his recitation of fact or his analysis. 30 from medical sources, the ALJ’s credibility determination of

Mounce’s complaints of neck pain, and the ALJ’s alleged failure

to base his RFC on substantial evidence.

IV. CONCLUSION

For the foregoing reasons, I grant Mounce’s motion to

reverse (Doc. N o . 7 ) , deny the Commissioner’s motion to affirm

(Doc. N o . 9 ) , and pursuant to

(g), remand this

case to the Social Security Administration. The clerk is

directed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 2 , 2011

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

31