Couitt v . SSA CV-11-124-PB 4/3/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Debra Jean Couitt

v. Case N o . 11-cv-124-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Debra Jean Couitt seeks judicial review of a decision by

the Commissioner of the Social Security Administration denying

her application for disability insurance and supplemental

security income benefits. Couitt contends that the

Administrative Law Judge (“ALJ”) who heard her case erred in

making the residual functional capacity assessment, which led to

an error in determining that she was not disabled. The

Commissioner moves to affirm the decision. For the reasons

provided below, I reverse the decision and remand the case for

further administrative proceedings.

I. BACKGROUND1

Couitt filed applications for disability insurance and

supplemental security income benefits on May 2 9 , 2009, when she

was fifty-one years old. She had a high school education and

1 The background information is taken from the parties’ Joint Statement of Material Facts (Doc. N o . 13) and the administrative record. See LR 9.1(b). had worked as a delivery driver and in an auto parts machine

shop. Couitt alleged disability due to back pain.

A. Medical History

Couitt had a history of chronic low back pain beginning in

the 1980s. An MRI done in February 2009 showed disc changes at

many levels, which were worst at L3-4 where she had a central

disc herniation and an annular tear. She also had a small disc

protrusion at L5-S1. An x-ray of her lumbar spine done on the

same day show multilevel degenerative changes with the greatest

changes at L3-4 and L5-S1. On February 2 0 , 2009, Couitt saw D r .

Brian Carney for an orthopedic consultation. D r . Carney

concluded that Couitt had chronic low back pain due to

degenerative lumbar disc disease.

Couitt had a mental health evaluation in March 2009 due to

stress related to caring for her mother, who was in the final

stages of Alzheimer’s disease. On March 2 3 , Couitt reported to

her physical therapist that she had lost her job.

On April 1 4 , 2009, Couitt went to the emergency room at

Mount Ascutney Hospital due to back pain. She was seen by

Jeffrey Ketchen, PA-C. Ketchen noted that Couitt appeared to be

in moderate pain. Based on his examination, Ketchen found

Couitt had normal strength, normal neurovascular and sensory

results, normal gait and body control, mild to moderate muscle

spasm in the left side of her lower back, no bony point

2 tenderness, no leg weakness, and normal reflexes. Despite a

significant decrease in range of motion in her back, Couitt’s

straight leg raising was negative. Ketchen prescribed a small

amount of Percocet and back exercises.

Couitt had an appointment with D r . Jessica Fisher on April

2 2 , 2009, to establish a primary care relationship. Couitt

reported that her back pain had been manageable with ibuprofen

until recently, when it had worsened. She said that prolonged

sitting, standing, or walking increased her pain, that

medications made her tired without providing relief, and that

she used exercises prescribed by a physical therapist each

morning. Couitt said that she was no longer able to work. Dr.

Fisher found normal strength in Couitt’s legs and pain on the

left side and lower area of her back. D r . Fisher noted that

Couitt’s back pain was not well controlled with non-narcotic

medication, that narcotic medication was not advisable, that

physical therapy had not been successful, and that, based on an

orthopedic consult, Couitt was not a candidate for surgery. Dr.

Fisher referred Couitt to pain management services for a

possible epidural steroid injection. On May 6, D r . Fisher wrote

a note for Couitt to excuse her from work due to disability.

Sharon Besson, Nurse Practitioner, saw Couitt at a pain

clinic on June 9, 2009. Couitt related her history of back

pain, explained that she had lost her job because of missing

3 work to care for her mother, and described her limitations due

to back pain. Although Couitt easily walked into the

examination room, Besson noted that Couitt was uncomfortable

sitting. On examination, Besson found tenderness and knotting

in her back but a full range of motion in her legs with intact

motor strength and sensation. After the appointment with

Besson, Couitt contacted urgent care asking for a renewal of her

pain medication because the pain clinic had not renewed the

prescription. On June 1 0 , Couitt talked to D r . Fisher about

narcotic pain medication, and D r . Fisher told her she would have

to be seen in the clinic first and that long-term narcotics were

not a solution to her pain.

Dr. Fisher saw Couitt on July 2 , 2009, and explained that

her back pain could not be managed with narcotic medication

alone. They discussed options, and Couitt agreed to try a

combination of non-narcotic medications, heat and ice, and

physical therapy. On examination, Couitt’s spine was not

tender; her pain was nine of ten in the lower back; her gait was

mildly antalgic (a limp with a short standing phase); she was

able to walk on her heels and toes; and she had no signs of

radiculopathy. Couitt also complained of joint pain in her neck

and hands. Couitt admitted to using marijuana with a neighbor,

which caused a positive urine screen. On July 1 0 , D r . Fisher

reminded Couitt to take advantage of mental health therapy,

4 biofeedback, or the chronic pain support group. After Couitt’s

urine screen was negative, D r . Fisher prescribed a two-week

course of Percocet.

In August 2009, a state agency reviewing physician, D r .

Burton Nault, completed a residual functional capacity

assessment (“RFC”) based on a review of Couitt’s medical

records. D r . Nault determined that Couitt could occasionally

lift up to twenty pounds and could frequently lift ten pounds.

He also found that Couitt could sit, stand, and walk for six

hours in an eight-hour work day as long as she had a sit or

stand option, and that she could occasionally do postural

activities such as climbing and stooping.

Couitt had a consultative psychological examination with

Francis Warman, Ph.D., on August 2 7 , 2009. Couitt said that she

was doing light housecleaning and chores, that she went for

walks, and that she visited her mother. D r . Warman noted that

Couitt’s pain limited her lifting ability but that she appeared

to be able to do most activities of daily living. He thought

that she was dealing with chronic pain, could benefit from the

pain clinic, and that she had some limitations in activities of

daily living but was able to function satisfactorily.

On November 9, 2009, Couitt had an appointment with D r .

Fisher, and they discussed her pain and options for therapy.

Dr. Fisher recommended Tylenol and ibuprofen for Couitt’s neck

5 and hand pain and continued Nortriptyline for back pain. Dr.

Fisher also recommended participation in a chronic pain group,

trigger point injections, ice, heat, and physical therapy.

On November 1 2 , 2009, D r . Christopher D. Nice at the

Veterans Administration Medical Center completed an annual

review of Couitt’s records and noted multiple pain syndromes,

trigger points, and features of fibromyalgia. He concluded that

physical therapy was the best treatment.

In February 2010, D r . Fisher completed a form for Couitt’s

credit card company in which she stated that Couitt would be

disabled from work until the end of June 2010. In March 2010,

Dr. Fisher saw Couitt and noted that her back pain was

unchanged. Couitt reported that she was most uncomfortable when

sitting or lying down, that the trigger point injections were

not helpful, that she was not taking Tylenol because it was not

helpful, that she was not taking ibuprofen because it upset her

stomach, that she was taking Nortriptyline, which she thought

was helping her to sleep and to feel better, and that she had

not tried a chronic pain support group or biofeedback. Couitt

also said that her hands were painful, making it difficult to do

fine-motor tasks.

On March 2 9 , 2010, Couitt saw D r . Jonathan Jones, a fellow

in rheumatology, for a consult because x-rays of her hands

showed erosive osteoarthritis. Couitt described symptoms of

6 numbness and burning in her fingers, which was causing her to

drop things.

Couitt saw D r . Fisher again on June 2 9 , 2010, and reported

that her back pain was worse than usual after moving out of her

apartment. D r . Fisher diagnosed Couitt with chronic back pain,

osteopenia (pertaining to bone density), and likely inflammatory

arthritis in her hands. D r . Fisher increased Couitt’s dose of

Nortriptyline and started a new medication, Tramadol. He also

ordered a back brace and a functional capacity evaluation.

Couitt had an out-patient physical therapy appointment and was

fitted for a back brace. She also got a MedicAir Back Pillow to

use while driving.

On June 3 0 , 2010, Couitt saw D r . Jones again for her hand

pain. He thought that carpal tunnel syndrome and rheumatoid

arthritis were unlikely and that her pain was more likely due to

erosive arthritis. He prescribed a trial use of

hydroxychloroquine.

On August 2 6 , 2010, Jeff Abrahamson, OT/L, CWCE, an

occupational therapist, performed a functional capacity

evaluation on referral from D r . Fisher. Abrahamson’s evaluation

included a musculoskeletal evaluation, mobility screening,

cardiovascular fitness, pinch and grip strength testing,

dexterity testing, strength pushing, strength pulling, strength

carrying, strength occasional lifting, physical effort,

7 competitive test performance, clinical consistency, reliability

of pain and disability reporting, and recommendations.

Abrahamson concluded that Couitt could sit for a sustained

period of one hour, with two hours total in a day, and could

stand for thirty minutes sustained, with an hour and a half

total in a day. He noted that Couitt was in pain when she left

the testing site and was still in pain the next day.

Testing showed that Couitt’s hand strength was weak. Her

fine and medium motor coordination were mildly to moderately

impaired, which was consistent with the arthritis objectively

observed in her hands. She could perform lifting tasks at the

sedentary to light level but only with increased pain. She

could lift up to twenty pounds occasionally, could carry up to

forty pounds occasionally, and could push or pull forty to

forty-eight pounds occasionally. Cardiovascular testing showed

that Couitt could perform work at the medium exertional level,

but Abrahamson noted that she could not functionally perform at

that level because of pain, which was demonstrated during the

testing process. In Abrahamson’s opinion, based on his tests

for effort and reliability and his clinical observations, Couitt

maintained high levels of effort and her reports of pain and

disability were fully reliable. Abrahamson concluded that

pursuing disability benefits was the most appropriate option for

Couitt.

8 B. Hearing

A hearing before an ALJ was held on August 3 0 , 2010.

Couitt testified at the hearing and was represented by counsel.

A vocational expert also testified.

Couitt testified that she stopped working on May 2 9 , 2009

because of back pain, which had interfered with her work for a

year. She said that she had pain in her left lower back and had

arthritis in her neck and fingers. She stated that she

typically spent most of the day using a heating pad and got up

only occasionally to do chores around the house. Couitt

testified that she had been prescribed “Prematol” but was not

taking pain medication because she did not like the way she felt

with medication. She also stated that physical therapy,

biofeedback, and steroid shots had not helped. She was able to

take care of herself and tried to do things around the house.

She also drove to visit her mother twice a week.

The vocational expert testified that Couitt’s previous work

as a delivery driver and in auto parts manufacturing was

unskilled work at the medium exertional level. The ALJ posed a

hypothetical question to the vocational expert regarding the

capabilities of a person who could occasionally lift twenty

pounds, could frequently lift ten pounds, could stand and walk

for six hours in an eight-hour work day, could sit for six hours

with an option to alternate between sitting and standing, had

9 unlimited use of her hands and feet, and could operate controls,

push, and pull. The vocational expert testified that such a

person could not do Couitt’s prior work but could do jobs at the

light exertional level such as a companion, a storage area

clerk, a survey assistant, and an office helper. Couitt’s

attorney asked if a person who could only stand for a couple of

hours during a work day would be able to do the identified jobs,

and the vocational expert agreed that none of the jobs would be available.2

C. Decision

The ALJ issued his decision on September 2 3 , 2010, finding

that Couitt was able to do work at the light exertional level

with a sit or stand option. Based on that RFC, the ALJ relied

on the vocational expert’s opinion about what jobs were

available and concluded that Couitt was not disabled. The

Decision Review Board (“DRB”) informed Couitt that the ALJ’s

decision was selected for review. Couitt’s attorney submitted a

letter from D r . Fisher, dated October 2 0 , 2010, to the DRB. On

January 1 3 , 2011, the DRB notified Couitt that it had not

2 The ALJ and Couitt’s attorney agreed that if Couitt were limited to sedentary work, she would be found disabled under the Medical Vocational Guidelines, 20 C.F.R. Part 4 0 4 , Subpart P.

10 completed a review within the time allowed, making the ALJ’s

decision the final decision of the Commissioner.3

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the transcript of the

administrative record 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

as 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.’”

Irlanda Ortiz v . Sec’y of Health & Human Servs.,

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

Health & Human Servs.,

1 8 , 222 (1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

3 Because the DRB did not consider the letter from D r . Fisher, the letter is not part of the administrative record in the case and will not be considered here. Mills v . Apfel,

, 4 (1st Cir. 2001); Costa v . Astrue,

, at *1 (D.N.H. Nov. 3 , 2010). 11 conclusive even if the record “arguably could support a

different conclusion.” Irlanda Ortiz,

.

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). The ALJ is responsible for determining issues of

credibility and for drawing inferences from the evidence on the

record. Irlanda 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 ALJ 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

The ALJ found that Couitt retained the residual functional

capacity to do light work with a sit or stand option and

determined at the fifth step of the sequential analysis that

12 work existed in the requisite numbers that she could d o . Couitt

contends that the ALJ erred because he improperly assessed her

RFC and relied on the vocational expert’s opinion in response to

the erroneous RFC to find that she was not disabled. The

Commissioner defends the decision.

A. Weight Given to Opinion of Occupational Therapist

The ALJ gave limited weight to the opinion provided by Jeff

Abrahamson, a licensed occupational therapist, because he is not

an “acceptable medical source” under the regulations and because

the ALJ thought Abrahamson relied on Couitt’s subjective

complaints, which the ALJ believed were contradicted by the

objective test results. Because an occupational therapist is

not an acceptable medical source under the Social Security

regulations, Abrahamson could not provide a medical opinion to

establish the existence of an impairment.

(a), 416.913(a); see also

,

416.927. Opinions from non-medical sources, however, can

provide information about the severity and functional effects of

an established impairment.

(d),

416.913(d); SSR 06-03p,

. In making a residual

functional capacity assessment, an ALJ is required to consider

all of the record evidence. Alcantara v . Astrue,

(1st Cir. 2007); Friedman v . Astrue,

, at *13 (D. Mass. Sept. 2 8 , 2011).

13 In this case, the ALJ found that Couitt had a severe

impairment due to degenerative disc disease of the lumbar spine

that caused low back myofascial pain.4 Abrahamson, a licensed

occupational therapist, provided an opinion about Couitts’s

ability to function in a work setting based on his testing and

observations during the testing process. As such, Abrahamson

did not offer a medical opinion about the existence of an

impairment but instead provided evidence about the severity and

functional effect of an impairment diagnosed by medical sources.

Such an opinion is assessed based on factors such as the

source’s relationship with the claimant, how consistent the

opinion is with other evidence, the amount of relevant evidence

provided to support the opinion, the explanation of the opinion,

and the source’s specialty or area of expertise. SSR 06-03P,

, at *4-*5 (Aug. 9, 2006).

Abrahamson is a licensed occupational therapist. Dr.

Fisher referred Couitt “for an assessment of her physical

abilities and limitations related to work.” Admin. Rec. at 402.

As part of his assessment, Abrahamson evaluated whether Couitt

gave her maximal effort during testing, whether her subjective

reports of pain and disability were reliable, and whether Social

Security benefits were appropriate. Abrahamson concluded, based

4 The ALJ does not mention the issue of arthritis in Couitt’s hands. 14 on “[o]verall test findings, in combination with clinical

observations,” that Couitt gave “high levels of physical effort”

and that her reports of pain and disability were “fully

reliable.”

In summary, Abrahamson concluded that Couitt

had weak hand strength, that her fine and medium motor

coordination was mildly to moderately impaired “consistent with

arthritic changes noted objectively in both hands,” that she

could lift at the sedentary or light levels “but only with

increased pain,” that her back pain was the most limiting

factor, and that she demonstrated and complained of “moderate to

severe pain through the evaluation.” Admin. Rec. at 404.

Abrahamson recommended that Social Security benefits were the

appropriate option for Couitt.

The ALJ discounted Abrahamson’s test results and

recommendation, stating that he “relie[d] too heavily upon the

claimant’s subjective complaint of pain when objective testing

supported a retained work capacity, including M.E.T. testing

that demonstrated the claimant’s cardiovascular status would

allow her to perform at the medium level of exertion.” Admin.

Rec. at 1 7 . The M.E.T. testing evaluated Couitt’s

cardiovascular functioning without considering the effect of her

back pain, as Abrahamson explained in his report. Admin. Rec.

at 403. Couitt claims disability based on lower back pain, not

because of a cardiovascular deficiency, and the ALJ found that

15 she had a severe impairment due to degenerative disc disease and

low back pain. Therefore, the ALJ’s reference to Couitt’s

cardiovascular function is irrelevant to an assessment of her

ability to work despite her impairment due to back pain.

Further, Abrahamson’s report documents the objective bases for

his assessment of Couitt’s effort and reliability, which

undermines the ALJ’s criticism that Abrahamson relied too

heavily on subjective complaints.

B. Residual Functional Capacity Assessment

The ALJ determined that Couitt retained the ability to

perform light work, as defined by

(b) and §

416.967(b) with the freedom to alternate between sitting and

standing.5 The ALJ also found that Couitt could stand, walk, or

sit for six hours in an eight-hour day, had full use of her

hands and feet to operate hand and foot controls, and could

occasionally perform postural activities. In support of his

assessment, the ALJ summarized some of Couitt’s medical history,

noted that Abrahamson found she was capable of sedentary to

light range of exertion, and stated that “none of the claimant’s

treating physicians have described the claimant as disabled” and

that “most treating sources recommend that the claimant remain

as active as possible.” Admin. Rec. at 1 7 .

5 The ALJ provided the wrong definition for light work in his decision. 16 Contrary to the ALJ’s summary of the medical evidence, on

February 9, 2010, D r . Fisher, Couitt’s primary care physician,

wrote on disability paperwork for Couitt’s credit card company

that Couitt would be disabled until June 3 0 , 2010. In June, D r .

Fisher noted that Couitt’s back pain was worse and ordered a

back brace and a functional capacity evaluation.6 Couitt

received the back brace on June 2 8 , 2010, and Abrahamson

completed the functional capacity evaluation in August,

concluding that Social Security benefits were the most

appropriate option for Couitt.

In addition, the ALJ does not provide a clear explanation

for his RFC assessment. The ALJ’s recitation of parts of the

medical evidence does not indicate why those parts support his

finding that Couitt was able to do light work. While he notes

that Couitt was not a candidate for surgery and her physicians

recommended a conservative treatment course, he does not explain

why those circumstances show she is able to do light work

despite her back pain. The ALJ also states that Couitt was not

“currently taking medication.” Admin. Rec. at 1 8 . At the

hearing, however, Couitt testified that she had been prescribed

“Prematol” but tried to treat pain with a heating pad or ice

because she did not like the feeling medications caused. The

6 The ALJ appears to have confused the chronology of Couitt’s treatment. 17 ALJ does not explain the significance of his note about Couitt’s

medications.

The ALJ also failed to provide any citation to an

evaluation in the record to support his assessment. The ALJ’s

assessment is similar to the RFC assessment done by the state

agency physician in August 2009. To the extent the ALJ relied

on that assessment, however, it was based on the record as it

existed before August 2009. Therefore, that assessment did not

consider Couitt’s records generated after that time, including

the opinions of D r . Jones about arthritis in Couitt’s hands, the

prescription of a back brace, and Abrahamson’s evaluation. An

opinion of a state agency consultant that is based on an

incomplete record does not provide substantial evidence to

support the ALJ’s RFC assessment. McAulay v . Astrue,

, at *6 (D.N.H. Mar. 1 6 , 2012); Spielberg v . Astrue,

, at *6 (D.N.H. Oct. 1 8 , 2011).

The Commissioner also argues that the ALJ could have

determined Couitt’s RFC based on the medical evidence alone,

without relying on the state agency consultant’s evaluation.

“As a lay person, however, the ALJ was simply not qualified to

interpret raw medical data in functional terms . . . .” Nguyen,

172 F.3d at 3 5 ; see also Berrios Lopez v . Sec’y of Health &

Human Servs.,

2 7 , 430 (1st Cir. 1991) (“Since bare

medical findings are unintelligible to a lay person in terms of

18 residual functional capacity, the ALJ is not qualified to assess

claimant’s residual functional capacity based on the bare

medical record.”).

The Commissioner relies on the narrow exception to that

rule when “the medical evidence shows relatively little physical

impairment, [so that] an ALJ permissibly can render a

commonsense judgment about functional capacity even without a

physician’s assessment.” Manso-Pizarro v . Sec’y of Health &

Human Servs.,

5 , 17 (1st Cir. 1996). The exception

does not apply here. The record shows that Couitt was

experiencing significant pain from her back condition to the

point that Abrahamson concluded that Social Security benefits

were her only option and that D r . Fisher found her disabled from

work for at least several months. The ALJ chose to discredit

Abrahamson’s evaluation and to make his own assessment of

Couitt’s functional capacity. To the extent the ALJ’s

assessment was taken from the raw medical record, that process

exceeded his qualifications.

C. Determination

The ALJ determined that Couitt was not disabled based on an

improper RFC assessment which the ALJ used to pose a

hypothetical to the vocational expert. As a result, the

vocational expert’s opinions about what work a person could do

with an erroneous RFC are not relevant to Couitt’s claim.

19 Therefore, the record lacks substantial evidence to support the

ALJ’s determination. The Commissioner’s decision must be

reversed and remanded for further administrative proceedings.

IV. CONCLUSION

For the foregoing reasons, I deny the Commissioner’s motion

to affirm (Doc. N o . 12) and grant Couitts’s motion to reverse

(Doc. N o . 9 ) . Pursuant to

(g), I remand the case

to the Social Security Administration for further proceedings

consistent with this decision. The clerk is directed to enter

judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 3 , 2012

cc: Bennett B . Mortell, Esq. T . David Plourde, AUSA

20