Dwyer v . SSA 11-CV-374-SM 6/19/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Pauline Ann Dwyer, Claimant

v. Civil N o . 11-cv-374-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), claimant, Pauline Ann Dwyer,

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.

Factual Background

I. Procedural History

On April 2 7 , 2009, claimant filed an application for social

security disability insurance benefits (“DIB benefits”) alleging

that she had been unable to work since February 1 2 , 2009. She

asserts eligibility for benefits based on disabilities due to

chronic neck pain, migraines, and fibromyalgia. Her application for benefits was denied and she requested an administrative

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

On December 3 0 , 2010, claimant, who was 41 years old at the

time, her attorney, and an impartial vocational expert appeared

before an ALJ. Claimant’s husband testified on her behalf. On

January 1 1 , 2011, the ALJ issued his written decision, concluding

that claimant was not disabled from February 1 2 , 2009, through

the date of the decision; that claimant had had the ability to do

sedentary work with some restrictions, including her past work as

a receptionist and phlebotomist. Claimant was thus ineligible

for DIB benefits. 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 benefits. Now pending are claimant’s “Motion

for Order Reversing Decision of the Commissioner” (document n o .

8 ) and the Commissioner’s “Motion for Order Affirming the

Decision of the Commissioner” (document n o . 1 0 ) .

2 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 4 ) , need not be recounted in this

opinion.

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

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 evidence supporting the contrary position. See Tsarelka v .

Secretary of Health & Human Services,

(1st Cir.

1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if

the record arguably could justify a different conclusion, so long

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

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 ,

4 195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

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).

5 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,

, 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;

6 (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.

. 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

In deciding that Dwyer was not disabled, the ALJ employed

the mandatory sequential evaluation process described in

. He first determined that she had not been

7 engaged in substantial gainful employment since her alleged onset

of disability. Next, he concluded that claimant has the severe

impairments of status post intracranial aneurysm and migraine

headaches, but not a severe impairment of fibromyalgia.

Administrative Record (“Admin. Rec.”) 12-13. The ALJ determined

that Dwyer’s impairments, regardless of whether they were

considered alone or in combination, did not meet or equal one of

the impairments listed in Part 4 0 4 , Subpart P, Appendix 1 .

Admin. Rec. 1 3 .

Next, the ALJ concluded that Dwyer retained the residual

functional capacity (“RFC”) to perform sedentary work, except

that she is limited to standing and walking a maximum of two

hours per day; she can never balance, but can perform all other

postural activities occasionally; and she should avoid all

exposure to workplace hazards, including dangerous machinery and

unprotected heights. Admin. Rec. 1 3 . Based on his RFC, the ALJ

found that Dwyer was capable of performing past relevant work as

a receptionist and phlebotomist. Admin. Rec. 1 6 .

Consequently, the ALJ concluded that claimant was not

“disabled,” as that term is defined in the Act, from February 1 2 ,

2009, through the date of his decision. Admin. Rec. 1 7 .

Claimant, therefore, was deemed ineligible for DIB benefits.

8 II. Claimant’s Assertions of Error

In support of her motion to remand, claimant advances the

following claims: (1) the ALJ erred at Step 2 in the sequential

evaluation process in finding that claimant’s fibromyalgia was

not a severe impairment; (2) the ALJ erred at Step 4 in the

sequential evaluation process in finding that claimant was able

to perform her past relevant jobs as phlebotomist and

receptionist; and (3) the ALJ’s decision is not supported by

substantial evidence because, among other things, he ignored

and/or misconstrued evidence of claimant’s neck postural

limitations and the severity of her pain. Because it is

dispositive of claimant’s pending motion, only the last argument

is addressed. See generally Blake v . Apfel,

, at

*6 (D.N.H. January 2 8 , 2000) (Barbadoro, J.) (reversing

Commissioner’s final decision where, among other things, ALJ

“failed to consider” corroborating medical evidence and

“misconstrued and/or ignored non-medical evidence”).

III. The ALJ Overlooked Relevant Evidence Relating to Neck Postural Limitations

In February of 2010, at the urging of her treating physician

assistant, claimant underwent functional capacity testing

conducted by occupational therapist Gregory Morneau. In his

functional capacity evaluation (“FCE”), Morneau found that

9 claimant had the “potential” for “[s]edentary physical demand

level into the light range.” He also found, however, that

claimant “presented with extreme limitation to stooping or any

activity requiring a forward head posture,” such that future

employment would need to provide modifications “to promote

neutral cervical spine positioning and avoid repetitive rotation

or head movements.” Admin. Rec. 519. He concluded, therefore,

that claimant was “unable to pursue gainful employment at this

time.”

The ALJ accepted the “objective results” indicating

that claimant could “sustain a range of work between the

sedentary and light exertional levels,” and gave “little weight”

to Morneau’s opinion that claimant is unable to pursue gainful

employment. Admin. Rec. 1 6 . However, the ALJ did not mention

Morneau’s findings with respect to neck postural limitations.

At the administrative hearing, claimant’s attorney asked the

vocational expert (“VE”) if a person would be able to do the jobs

of receptionist or phlebotomist if she “need[ed] her head to

remain in a neutral position” and needed “to avoid repetitive

rotation or head movements.” Admin. Rec. 40-41. The expert

responded that the jobs could not “guarantee maintaining a

neutral position at all times, s o , yes, it would affect the

ability to do these jobs.”

at 4 1 .

10 An ALJ is required to consider and weigh all relevant

evidence, including the findings of sources, such as occupational

therapists, who are not “acceptable medical sources”. Couitt v .

Astrue,

, at *5 (D.N.H. April 3 , 2012) (Barbadoro,

J.) (citing Alcantara v . Astrue,

(1st

Cir. 2007)). Notwithstanding this obligation to consider

relevant evidence from all sources, an ALJ is not required to

discuss “every piece of evidence in the record.” Shulkin v .

Astrue,

, at *8 (D.N.H. Jan. 1 1 , 2012) (Barbadoro,

J.) (citing Rodriguez v . Secretary of Health & Human Servs.,

,

(1st Cir. 1990) (per curiam;

table, text available on Westlaw)).

As a practical matter, however, if an ALJ does not mention

“important and highly probative” evidence “contradicting his

view,” Shulkin,

, at * 1 1 , meaningful judicial review

may be foreclosed.

(citing Lord v . Apfel,

,

14 (D.N.H. 2000) (Barbadoro, J . ) ) . That is because the court in

such a circumstance is not able to know whether the ALJ

“considered and rejected” the evidence, which is within his sound

discretion to d o , or whether he “merely overlooked” i t , which is

impermissible. Shulkin,

, at * 1 1 . See also Lord,

(“For a reviewing court to be satisfied

that an ALJ's decision was supported by substantial evidence,

11 that decision must take into account whatever in the record

fairly detracts from its weight.”) (quotations omitted).

Here, the ALJ was careful to say that the “objective results

of the [functional capacity] testing” should be “given weight,”

and that Morneau’s opinion that claimant was unable to pursue

gainful employment should be “given little weight.” The ALJ also

explained why he reached those conclusions. Admin. Rec. 1 6 . But

he did not - even briefly or cursorily - mention Morneau’s

finding of “extreme limitation to . . . any activity requiring a

forward head posture.”2 Without more, this court cannot know

whether the ALJ “considered and rejected” the finding or whether

he “merely overlooked” i t . Shulkin,

, at * 1 1 . See

also DaSilva-Santos v . Astrue,

8 1 , 188-89

(finding error where “the hearing officer never acknowledged the

evidence that ran counter to his conclusions”).

The Commissioner argues, nevertheless, that the ALJ’s “other

findings” imply that he considered and rejected Moreneau’s

finding regarding neck postural limitations. In support, the

Commissioner points only to the fact that the ALJ gave “great

2 The finding is “important and highly probative” on the issue of claimant’s ability to work, as established by the VE’s testimony.

12 weight” to the report of D r . Hugh Fairly, the non-examining

Disability Determination Services doctor and adopted his opinion

about claimant’s limitations. Had D r . Fairly considered

Morneau’s FCE, it might be inferred that the ALJ also considered

and rejected Morneau’s finding regarding postural limitations.

But D r . Fairly, who did not examine claimant, did not consider

the FCE, which was conducted six months after he submitted his

report. The ALJ’s assignment of “great weight” to D r . Fairly’s

report, therefore, does not imply that he considered and rejected

Morneau’s finding of neck postural limitations. Moreover, unlike

this court’s decision in Snow v . Astrue,

, at *4

(D.N.H. Oct. 1 2 , 2011), on which the Commissioner relies, the ALJ

here did not address neck postural limitations in any other part

of his decision. See

(finding that, although ALJ did not

mention medical source’s finding of “motivation and fatigue,” it

was “sufficiently clear from the ALJ’s decision” why he

(implicitly) rejected the finding, where he directly addressed

the alleged limitation elsewhere in his decision).

In sum, because the ALJ failed to discuss the FCE’s finding

of neck postural limitations, this court cannot “be satisfied

that [his] decision was supported by substantial evidence.”

Lord,

4 . See also Nguyen v . Chater,

1 , 35 (1st Cir. 1999) (“The ALJ’s findings of fact are

13 conclusive when supported by substantial evidence, . . . but are

not conclusive when derived by ignoring evidence”).

IV. The ALJ Misconstrued Relevant Evidence Relating to Severity of Pain

In assessing the credibility of claimant’s allegations of

disabling pain, the ALJ found that her activities of daily living

were inconsistent with the allegations. The ALJ’s conclusion

does not seem to reflect the totality of the daily activities

evidence. See Blake,

, at * * 6 , 8 (reversing

Commissioner’s final decision where ALJ “misconstrued” evidence

of claimant’s activities of daily living).

Claimant stated that she experiences daily headaches that

“sometimes . . . escalate to full migraines,” “at least two-three

times a week.” Admin. Rec. 3 2 , 156. She reported that numerous

household activities trigger headaches, see

at 2 9 , 3 4 , but

that those that require a head-forward position, such as cooking

and washing dishes, are particularly problematic.

at 3 0 , 3 4 .

The head-forward posture, she reports, triggers pressure and pain

in her head and blurred vision. She explained, for example:

Like this morning just cleaning the dishes out of the sink, putting them in the dishwasher and trying to keep my neck at a decent so I’m not, you know, looking down too far, and it just started triggering a lot of pressure in my head where I did take medication for my

14 headaches and the blurred vision. I mean, its’ just– and I keep asking the neurologist, you know, this can’t be normal, and they say it i s , it’s all part of migraine.

Admin. Rec. 30

As a consequence, she reported, she does household chores in

half-hour increments, and must stop “for awhile.” Admin. Rec.

34. She also reported that, while she continues to clean her

house, she does less than she used to d o .

With regard to exercise, claimant stated that she “walk[s]

and stretch[es] with pain,” but that the exercise “eases some of

the pain.” T r . 142. She testified that “[a] lot of times

[exercise] makes it worse, . . . I keep doing it because if I

don’t I will be ten times worse.” Tr. 3 0 .

The ALJ seems to have misconstrued the evidence of

claimant’s daily activities in two ways. First, he inferred that

claimant is not under severe pain because she engages in

exercise. Admin. Rec. 1 5 . But the fact that claimant exercises

does not contradict her allegations of severe pain because her

testimony was that she exercises to alleviate pain. See

Carradine v . Barnhart,

5 1 , 755-56 (7th Cir. 2004)

(Posner, J.) (“Since exercise is one of the treatments that

15 doctors have prescribed for Carradine's pain, and she does not

claim to be paralyzed, we cannot see how her being able to walk

two miles is inconsistent with her suffering severe pain.”).

Importantly, claimant’s explanation that she exercises to

alleviate pain is not contradicted on the record and, indeed, the

ALJ accepted i t . See Admin. Rec. 1 5 .

The ALJ also inferred a contradiction between claimant’s

allegations of disabling pain, on the one hand, and her ability

to do household chores, on the other. See generally Rodriguez,

1 8 , 222 (1st Cir. 1981) (the ALJ’s “inference from

evidentiary facts” must be “permissible”). “To be capable of

substantial gainful activity,” a claimant must be able to perform

the tasks of a job “day in and day out, in the sometimes

competitive and stressful conditions in which real people work in

the real world.” Blake,

, at *8 (quotation and

citations omitted). A claimant’s “ability to engage in limited

daily activities, including light housework,” therefore, “is not

necessarily inconsistent with “the inability to perform

substantial gainful activity.”

(quotation omitted) (emphasis

added). See also Carradine,

(ALJ is obligated

“to consider the difference between a person’s being able to

engage in sporadic physical activities and her being able to work

eight hours a day five consecutive days.”)

16 Here, the ALJ generally credited claimant’s statements about

her activities, and acknowledged that her blurred vision had some

limiting effect on those activities. He seems, however, to have

overlooked evidence of the limited manner in which she performs

those activities (i.e., by avoiding a head-forward posture and

taking breaks at half-hour increments). In doing s o , the ALJ

misconstrued the evidence. See Rohrberg v . Apfel,

(D. Mass. 1998) (reversing Commissioner’s decision

where, among other things, ALJ failed to take into account

evidence that claimant undertook activities intermittently,

choosing “when to do them to avoid experiencing severe pain”).

The court need not decide whether the ALJ’s assessment of

the daily activities evidence, standing alone, would warrant

remand. Given the ALJ’s failure to address the FCE’s finding of

neck postural limitations, the need for further administrative

proceedings, on that ground, is apparent. See Joyner v . Astrue,

, at **7-8 (M.D. Fla. Sept. 2 9 , 2011) (combination

o f , among other things, the ALJ’s “misstatements (or

misconstructions) of the record and the lack of reference to a

significant portion of the medical evidence, create[d] the

necessity for remand and further consideration of plaintiff’s

case.”).

17 Conclusion

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

decision of the Commissioner (document no. 8) is granted and the

Commissioner's motion to affirm his decision (document no. 10) is

denied. The case is remanded for further proceedings in

accordance with this order. Because this remand is made pursuant

to sentence four of

(g), the Clerk of Court is

instructed to enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J . McAuliffe 'United States District Judge June 19, 2012

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

18