Szczepanski v. SSA 10-CV-571-SM 2/9/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rosemary E. Szczepanski. Claimant

v. Civil No. 10-CV-571-SM Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), claimant, Rosemary

Szczepanski, 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 November 7, 2008, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that she had been unable to work since January 1, 2006, due

primarily to chronic severe back pain. Her application was denied and she requested a hearing before an Administrative Law

Judge ("ALJ").

On June 25, 2010, claimant, her attorney, and a vocational

expert appeared before an ALJ, who considered claimant's

application de novo. Approximately one month later, the ALJ

issued his written decision, concluding that claimant retained

the residual functional capacity to perform light work and,

therefore, was capable of performing her past work as a

telecommunications consultant. Accordingly, the ALJ concluded

that claimant was not disabled, as that term is defined in the

Act, at any time through the expiration of her insured status.

Claimant then sought review of the ALJ's decision by the

Decision Review Board, which was unable to complete its review

within the time period allowed. Accordingly, the ALJ's denial of

claimant's application for benefits became the final decision of

the Commissioner, subject to judicial review. Subsequently,

claimant filed a timely action in this court, asserting that the

ALJ's decision was not supported by substantial evidence and

seeking a judicial determination that she is disabled within the

meaning of the Act. Claimant then filed a "Motion for Order

Reversing Decision of the Commissioner" (document no. 16). In

2 response, the Commissioner filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 19). Those

motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 20), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are 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. See

05(g); Irlanda Ortiz v. Secretary of Health & Human Services,

(1st Cir. 1991). Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate

3 to support a conclusion." Consolidated Edison Co. v. NLRB,

(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.

Console v. Federal Maritime Comm'n.,

(1966).

See also Richardson v. Perales,

(1971) .

Consequently, 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, e.g., Tsarelka v. Secretary of Health &

Human Services,

(1st Cir. 1988); Rodriquez

Pagan v. Secretary of Health & Human Services,

(1st

Cir. 1987); Rodriguez v. Secretary of Health & Human Services.

647 F .2d 218, 222 (1st Cir. 1981) .

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(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

4 [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,

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

Human Services,

(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 the

claimant to establish the existence of a disabling impairment.

See Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health & Human Services,

(1st Cir.

1991). To satisfy that burden, the claimant must prove, by a

preponderance of the evidence, that her impairment prevents her

from performing her former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker.

5 Supp. 808, 810-11 (D. Mass. 1982). If the 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,

(1st Cir. 1982) . See

also

(g).

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services.

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). When determining whether a claimant is

disabled, the ALJ is also required to make the following five

inquiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

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

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

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

. Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] 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 concluding that Ms. Szczepanski was not disabled within

the meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in 20 C.F.R.

7 § 404.1520. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since January

1, 2006. Next, he concluded that claimant suffers from

"degenerative changes of the lumbar and cervical portions of the

spine, mild degenerative disease of the right knee and obesity."

Administrative Record ("Admin. Rec.") at 20. Nevertheless, the

ALJ determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

medically equal one of the impairments listed in Part 404,

Subpart P, Appendix 1. Jd. at 21. Claimant does not challenge

any of those findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

light work.1 He noted, however, that claimant's RFC was limited

2 "RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis." Social Security Ruling ("SSR"), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

8 by the following: "claimant is limited to occasional climbing,

balancing, stooping, kneeling, crouching and crawling. She needs

to avoid even moderate exposure to hazards." Admin. Rec. at 22.

Despite those restrictions, the ALJ concluded that claimant was

capable of returning to her prior job as a telecommunications

consultant. Jd. at 23.

Finally, because there was some question as to whether

claimant's prior employment exposed her to job-site hazards, the

ALJ also considered whether there were any jobs in the national

economy that she might perform. Relying upon the testimony of a

vocational expert as well as his own review of the medical

record, the ALJ concluded that, notwithstanding claimant's

exertional and non-exertional limitations, she "was capable of

making a successful adjustment to other work that existed in

significant numbers in the national economy." .Id. at 25.

Consequently, the ALJ concluded that claimant was not "disabled,"

as that term is defined in the Act, at "any time from January 1,

2006, the alleged onset date, through December 31, 2008, the date

last insured."

On appeal, claimant raises two issues. First, she says the

ALJ erred in finding that her subjective complaints of pain were

9 not entirely credible. Next, she says the ALJ's residual

functional capacity assessment - that claimant could perform a

range of light work - is not supported by substantial evidence in

the record.

II. Claimant's Credibility.

When determining a claimant's RFC, the ALJ must review the

medical evidence regarding the claimant's physical limitations as

well as her own description of those physical limitations,

including her subjective complaints of pain. See Manso-Pizarro

v. Secretary of Health & Human Services,

(1st Cir.

1996). When the claimant has demonstrated that she suffers from

an impairment that could reasonably be expected to produce the

pain or side effects she alleges, the ALJ must then evaluate the

intensity, persistence, and limiting effects of the claimant's

symptoms to determine the extent to which those symptoms limit

her ability to do basic work activities.

[W]henever 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. This includes medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by the treating or examining physicians or

10 psychologists and other persons about the symptoms and how they affect the individual . . . .

In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individuals' statements.

SSR 96-7p, Policy Interpretation Ruling Titles II and XVI:

Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual's Statements,

(July

2, 1996). Those factors include the claimant's daily activities

the location, duration, frequency, and intensity of the

claimant's pain or other symptoms; factors that precipitate and

aggravate the symptoms; the type dosage, effectiveness, and side

effects of any medication the claimant takes (or has taken) to

alleviate pain or other symptoms; and any measures other than

medication that the claimant receives (or has received) for

relief of pain or other symptoms. Jd. See also Avery.

;

(c)(3).

Here, claimant testified that she has been treated by

several physicians: a general practitioner, a neurologist, an

oncologist/hematologist, and an orthopedic surgeon. Admin. Rec. at 39. She claimed to experience continuous, often substantial,

pain, likely as a result of a serious automobile accident in

approximately 1987. See Amin. Rec at 40-41. See also Id. at 244

(letter from claimant's treating physician, Dr. Conger, stating

that "If your symptoms can be blamedon anything, I'd say the

motor vehicle accident is the most likely culprit."). She also

testified about profound fatigue, which is a side effect of her

pain medications. But, because those medications do not

eliminate her pain, claimant's sleep is disturbed and she does

not get a full night's rest. Instead, she takes numerous naps

during the day, of roughly 20 to 30 minutes. .Id. at 38-39, 41-

42. As to her strength and ability to lift, claimant said she

suffers from numbness in her hands and cannot lift items weighing

more than approximately five pounds. In fact, she testified that

she no longer buys milk by the gallon, because those containers

"almost always end up on the floor." .Id. 40. Additionally, she

testified that, as a result of her pain - primarily in her legs

and lower back - she stumbles and/or falls to the ground at least

once every two weeks. .Id. at 37.

In reaching the conclusion that claimant's testimony

concerning the disabling nature of her impairments was not

entirely credible, the ALJ noted the following: (1) claimant's

12 treating physician never specifically reported that she appears

to be in severe pain, despite her alleged problems with falling,

(2) she "exhibited normal gait, normal reflexes, normal strength

and intact sensation when evaluated by Dr. Conger in November

2007;" (3) Dr. Conger "could not explain her symptoms through

testing;" (4) during an evaluation to determine her ability to

perform work-related tasks, claimant was noted to "self-limit her

performance at a frequency that exceeded normal limits,-" and,

finally, (5) although claimant says she suffers from severe side-

effects from her medication, she was able to perform daily

activities like playing the piano, reading, using the internet,

and managing her own finances. Admin. Rec. at 23.

Considered at face value, those factors might well be

sufficient to support the ALJ's credibility finding. In the

context provided by the record, however, they are not. For

example, the ALJ's statement that Dr. Conger "could not explain

claimant's symptoms through testing" is not entirely consistent

with the content of the letter to which the ALJ is referring.

The ALJ's characterization of that letter, along with the

statement that Dr. Conger has not described claimant as

"appearing to have severe pain," implies that Dr. Conger doubted

13 whether claimant's pain is real. But, the record is clear that

he does not hold such doubts.

In the letter referenced by the ALJ, Dr. Conger reportedto

claimant that, "The blood work was all normal. The neuropathy is

just one of those things that came of its own accord and will

stay forever now that it's there." Admin. Rec. at 246. There is

no suggestion that Dr. Conger believed claimant was exaggerating

her symptoms or that she was a malingerer. See, e.g.. Id. at

201. See also Id. at 287 ("[P]atient has symptoms of lumbar and

cervical radiculopathy, and her activities are primarily limited

by pain. She is incapable of any but sedentary work, and is

limited in the amount of sitting she can do because of

exacerbation of her pain when in a sitting position forextended

periods of time. Given the poor pain control, she would only be

able to work for a maximum of four hours per day, and would only

be able to sit for single periods of time not exceeding 30

minutes."). Nor does there appear to be any question regarding

Dr. Conger's thoughts about the origins of claimant's pain - Dr.

Conger repeatedly stated that her pain was likely related to the

serious automobile accident in which she was involved. .Id. at

173, 175, 177.

14 As to claimant's self-limiting behavior during physical

testing, the examiner explained that possible causes of such

behavior are: "(1) pain; (2) psychological issues such as fear of

re-injury, anxiety, or depression; or (3) attempts to manipulate

the test results." Admin. Rec. at 2 91. Additionally, the

examiner noted that claimant did not take her pain medications

prior to the test, "because it makes her 'dopey,' dizzy, &

tired." .Id. at 2 92. The ALJ did not explain why he assumed

claimant's behavior was indicative of an effort to manipulate the

test results, rather than the at least equally plausible

explanation that she was in substantial pain because she had not

taken her medications.

In concluding that claimant's allegations of pain were not

entirely credible, the ALJ also pointed to her activities of

daily living as evidence of her ability to perform at a higher

level than she reported. Specifically, he noted that, despite

claimant's assertions of substantial pain and fatigue, she can

read, play the piano, use the internet, and manage her own

finances. .Id. at 23. Plainly, however, claimant's ability to

engage in those activities is not inconsistent with her

testimony, nor does it suggest that she is capable of substantial

gainful activity. See, e.g., Carreau v. Apfel,

at

15 *7 (D.N.H. Sept. 30, 1999) ("A claimant's participation in the

activities of daily living will not rebut his or her subjective

statements of pain or impairment unless there is proof that the

claimant engaged in those activities for sustained periods of

time comparable to those required to hold a light work job.")

(quoting Polidoro v. Apfel,

at *8 (S.D.N.Y. April

12, 1999) ) .

Finally, although the record contains a number of references

to steps that claimant undertook to reduce her pain - varying her

medications, physical therapy, use of a back brace, epidural

cortisone injections - the ALJ's decision does not discuss any of

them. See generally Avery,

;

(c).

In short, the court cannot conclude that the ALJ adequately

considered the factors identified in Avery and SSR 96-7p in

reaching his conclusion about claimant's credibility. While the

record may contain sufficient evidence to support the ALJ's

credibility finding, his written order does not identify or

discuss such evidence. And, because claimant's testimony - if

fully credited - supports her asserted disability, this matter

must be remanded to the ALJ for further proceedings.

16 III. Claimant's RFC for Light Work.

In light of the foregoing, the court need not go into great

detail discussing the ALJ's RFC determination. It is, perhaps,

sufficient to note that the ALJ's stated reasons for rejecting

the opinions of Dr. Conger (claimant's treating physician) and

Dr. DeFeo (an examining consultant) do not appear to be

adequately supported. Both doctors opined that claimant suffered

from numerous pain-related conditions that would, in essence,

preclude any substantial gainful activity. See, e.g.. Admin.

Rec. at 286-87, 395-98. The ALJ's stated reasons for rejecting

those opinions are neither weighty nor particularly compelling.

See Id. at 23.

For example, the ALJ discounted Dr. DeFeo's opinions

because: (1) claimant consulted with Dr. DeFeo shortly before her

administrative hearing; and (2) Dr. DeFeo was merely an

"examining physician," rather than a "treating physician." Id.

The ALJ's decision does not explain why the timing of claimant's

consultation would (or should) affect the reliability of Dr.

DeFeo's professional conclusions. And, while the ALJ chose to

discount Dr. DeFeo's opinions, at least in part, because he was

not a treating physician, he also discounted the opinions of

claimant's treating physician - in favor of the opinions of

17 other, non-examining, non-treating physicians, without adequate

explanation. Finally, the ALJ discounted Dr. DeFeo's opinions

because he reported that claimant walked with an "antalgic gait,"

which the ALJ said was inconsistent with "Dr. [DeFeo's] own

notation that claimant entered his office without problem or

assistance." Id. (emphasis supplied). Actually, Dr. DeFeo

observed that claimant entered his office without "assistance or

support." .Id. at 3 95. That statement does not imply that she

walked without difficulty, nor does it undermine Dr. DeFeo's

subsequent observation that she walked with an antalgic gait.

In November of 2009, Dr. Conger opined that claimant's pain

rendered her incapable of performing all but sedentary, part-time

work:

Patient has symptoms of lumbar and cervical radiculopathy, and her activities are primarily limited by pain. She is incapable of any but sedentary work, and is limited in the amount of sitting she can do because of exacerbation of her pain when in a sitting position for extended periods of time. Given the poor pain control, she would only be able to work for a maximum of four hours per day, and would only be able to sit for single [periods] of time not exceeding 30 minutes. Any work that involves bending, lifting or reaching on a [regular] basis is out of [the] question. Will try Lyrica again, which has helped with pain, but as with any of her pain medications, the drowsiness [from] medications [would] preclude working.

18 Admin. Rec. at 287. The ALJ discounted that opinion, largely

because a non-treating, non-examining physician - Dr. Waxman -

reviewed claimant's medical records and stated, without

elaboration or record citation, that "the [diagnosis] of

peripheral neuropathy is not well supported." .Id. at 275.

Without more, Dr. Waxmans' unsupported, conclusory statement is

an insufficient basis upon which to ground a decision to

disregard the opinions of claimant's treating physician.

There is, of course, no per se rule requiring the ALJ to

give greater weight to the opinions of a treating physician than

those of a consulting or even a non-examining physician. See

Arrovo v. Secretary of Health & Human Services,

(1st Cir. 1991); Tremblay v. Secretary of Health & Human

Services,

(1st Cir. 1982). But, when an ALJ

chooses to discount the opinions of a treating physician, he or

she must give "specific reasons for the weight given to the

treating source's medical opinion, supported by the evidence in

the case record, and must be sufficiently specific to make clear

to any subsequent reviewers the weight the adjudicator gave to

the treating source's medical opinion and the reasons for the

weight." SSR 96-2p, Policy Interpretation Ruling Titles II and

XVI: Giving Controlling Weight to Treating Source Medical

19 Opinions,

(July 2, 1996). See also

(d)(2).

While there may well be adequate reasons in the record to

support the ALJ's decision to discount the opinions of Dr. Conger

and Dr. DeFeo, his written decision does not identify them. He

should, then, be given an opportunity to reassess his evaluation

based upon a clearer focus on the content of the record.

Conclusion

For the foregoing reasons, claimant's motion for order

reversing the decision of the Commissioner (document no. 16.) is

granted to the extent she seeks a remand to the ALJ for further

proceedings. The Commissioner's motion for order affirming his

decision (document no. 1.9) is denied.

Pursuant to sentence four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

20 SO ORDERED.

Steven j/McAuliffe istrict Judge

February 9, 2012

cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.

21