Constance Leach v . SSA 11-CV-363-SM 8/9/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Constance Leach, Claimant

v. Civil N o . 11-cv-363-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), Constance Leach moves to

reverse the Commissioner’s decision denying her application for

Disability Insurance Benefits under Title II of the Social

Security Act,

(the “Act”). The Commissioner

objects and moves for an order affirming his decision.

Claimant’s history of both physical and mental impairments

is lengthy and substantial. That portion of the parties’ joint

statement of facts dedicated to summarizing her medical history

and the numerous surgical and non-surgical treatments she has

undergone spans more than sixty pages, and the administrative

record in this case is comprised of nearly 1200 pages. The

Administrative Law Judge’s decision is correspondingly lengthy

and detailed, and it is clear that he devoted substantial time and effort to familiarizing himself with the details of

claimant’s impairments. But, because the court concludes that

the ALJ did not identify a sufficient basis in the record for his

decision to discount the opinions and observations of claimant’s

treating psychotherapist (Dr. Wagner), claimant’s daughter

(Catherine Leach), and claimant’s friend and former housemate

(Patricia Enoch), the matter must be remanded for further

proceedings.

Factual Background

I. Procedural History.

In 2007, claimant filed an application for both Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”) benefits, alleging that she had been unable to work since

October 3 1 , 1998. Her application for SSI benefits was approved,

with a disability onset date of July 1 , 2007. But, her

application for DIB was denied, based on the conclusion that she

was not disabled prior to her date last insured (June 3 0 , 2004).

She requested an administrative hearing, after which the ALJ

issued a decision in which he concluded that she was not

disabled. Claimant appealed that denial to this court.

Subsequently, however, the parties filed an assented-to motion to

remand, so the ALJ might more fully evaluate claimant’s mental

2 impairments prior to her date last insured. The court granted

that motion.

In February of 2011, claimant (represented by counsel), a

vocational expert, and one of claimant’s friends appeared and

testified before the ALJ. A non-examining medical expert

testified by telephone. And, because claimant’s daughter was

unable to attend the hearing, the ALJ allowed her to present her

testimony in the form of an affidavit. Five weeks later, the ALJ

issued his written decision, concluding that claimant retained

the residual functional capacity to perform the physical and

mental demands of a range of light work. Admin. Rec. at 1 2 .

Although claimant’s limitations precluded her from performing her

past relevant work as a printing press operator,

at 1 9 , the

ALJ concluded that there was still a significant number of jobs

in the national economy that claimant could perform,

at 2 0 .

Accordingly, he determined that claimant was not disabled, as

that term is defined in the Act, at any time from October 3 1 ,

1998 (her alleged onset of disability) through June 3 0 , 2004 (her

date last insured).

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

Decision Review Board, which was unable to complete its review

3 during the time 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 is not supported by substantial evidence and

seeking a judicial determination that she is disabled within the

meaning of the Act. She then filed a “Motion for Order Reversing

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

the Commissioner filed a “Motion for Order Affirming the Decision

of the Commissioner” (document n o . 1 2 ) . 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 n o . 1 5 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

4 judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also 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 to support a conclusion.” Consolidated Edison

C o . v . NLRB,

9 7 , 229 (1938).

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,

3 7 , 146-47 (1987); Santiago v .

Secretary of Health & Human Services,

, 5 (1st Cir.

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

5 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,

0 8 , 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,

, 2 (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,

9 , 23 (1st Cir. 1986);

Goodermote v . Secretary of Health & Human Services,

, 6

(1st Cir. 1982). 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

6 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 claimant was not disabled within the

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

step sequential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since her

alleged onset of disability: October 3 1 , 1998. Admin. Rec. at

10. Next, he concluded that claimant suffers from the following

severe impairments: “left wrist tendinitis and tenosynovitis, and

a depressive disorder.”

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 4 0 4 , Subpart P,

7 Appendix 1 . Admin. Rec. at 10-12. Claimant does not challenge

those findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

a range of light work.1 He noted, however, that claimant could

use her left arm only occasionally, to assist her right arm; she

could not perform repetitive jobs involving grasping and handling

with her left hand; work instructions provided to her had to be

relatively simple; and she could not interact with the public on

a regular basis or perform jobs with high production

expectations.

at 1 2 . In light of those restrictions, the

ALJ concluded that claimant was not capable of returning to her

prior job as a printing press operator.

at 1 9 .

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 Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the testimony of a vocational expert, he concluded that, despite

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” through

the date on which she was last insured.

at 2 0 .

Consequently, the ALJ concluded that claimant was not “disabled,”

as that term is defined in the Act, at any time from her alleged

onset of disability, through her date last insured.

In support of her motion to reverse the decision of the

Commissioner, claimant advances four arguments: (1) the ALJ

improperly discounted the opinions of her treating source, D r .

Wagner; (2) the ALJ improperly discounted claimant’s credibility;

(3) the ALJ’s residual functional capacity assessment is not

supported by substantial evidence; and (4) the ALJ’s

determination that claimant could perform other work existing in

significant numbers in the national economy is not supported by

substantial evidence. The court need only address the first of

those arguments, since it is dispositive of the pending motions.

9 II. The Opinions of Claimant’s Treating Source.

Claimant challenges the ALJ’s determination that the opinion

of her treating psychologist, D r . Wagner, “is not supported by

his treatment notes or the medical record in general and is

entitled to little weight.” Admin. Rec. at 1 8 . More

specifically, she alleges that D r . Wagner’s numerous treatment

notes:

read in conjunction with the Psychiatric Evaluation for Affective disorders and Anxiety Related disorders, the Report of Individual with Mental Impairment, and his letter of clarification, as well as the records of D r . Gendron and [claimant’s] other treating doctors demonstrate the [she] could not work 40 hours a week on a regular, sustained basis.

Claimant’s Memorandum (document n o . 10-1) at 15-16 (citations

omitted).

In discussing the weight that will be ascribed to the

opinions of “treating sources,” the pertinent regulations

provide:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will

10 always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion.

(c)(2). See also SSR 96-2p, Policy

Interpretation Ruling Titles II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions,

(July

2 , 1996) (when the ALJ renders an adverse disability decision,

his or her notice of decision “must contain 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.”).

Here, D r . Wagner began treating claimant in 2001 and saw

her, on average, once or twice each month until April of 2003,

when she could no longer afford treatment. Claimant resumed

treatment with him again in August of 2004. Unfortunately, the

treatment notes from each of D r . Wagner’s many sessions with

claimant are relatively brief. For that reason, the ALJ

concluded that his assessment of claimant’s ability to engage in

substantial gainful activity was “unsupported by his treatment

notes.” Admin. Rec. at 1 8 .

11 In response to the suggestion that his treatment notes did

not adequately support his conclusions about claimant’s capacity

for gainful employment, D r . Wagner prepared a written statement,

in which he noted that:

In general, treatment notes reflect my role as [claimant’s] psychologist seeing her for pain management and accompanying depression. . . . When asked specifically about her work capabilities, I will, and have, commented on the categories presented to m e , but notes of my ongoing treatment reflect her clinical issues, her attempts to deal with her pain, and the factors influencing her situation - both caused by her work injury and those made harder to cope with due to pain, injury, lack of physical capabilities and depression. Mr role as ongoing psychotherapist does not include a work capability assessment from note to note.

Admin. Rec. at 1161 (emphasis in original). When D r . Wagner was

specifically asked about claimant’s ability to engage in

substantial gainful activity, he repeatedly opined that she was

not able. See “Psychiatric Evaluation Form for Affective

Disorders,” Admin. Rec. at 922-26 (completed by D r . Wagner and

addressing claimant’s condition from 2001 through her date last

insured); “Psychiatric Evaluation Form for Anxiety Related

Disorders,” Id. at 927-33 (same); and “Report of Individual with

Mental Impairment,” Id. at 1163-64 (same). Additionally, in his

written statement detailing claimant’s impairments, the side-

12 effects of her various medications, and the effects of her

depression and chronic pain, D r . Wagner concluded that:

Her conditions are chronic, she continues to have similar environmental stressors, and her capabilities remain limited. She has been psychiatrically hospitalized; is taking medications for pain that limit attention, concentration and sustainability of activities; and is hampered by ongoing pain, depression and resultant lack of work capacity.

Id. at 1162.

In deciding to afford the opinions of D r . Wagner “little

weight,” the ALJ echoed the view espoused by D r . Kutcher, the

non-examining medical expert who testified at claimant’s hearing.

In short, D r . Kutcher testified - and the ALJ agreed - that D r .

Wagner’s notes were not sufficiently detailed to permit him to

conclude that D r . Wagner’s opinions about claimant’s abilities

were adequately supported. See, e.g., Admin. Rec. at 129, 135.

The problem is this: viewed in its entirety (including the

testimony given before the ALJ) the record does support D r .

Wagner’s conclusions. As noted above, when asked, D r . Wagner

gave a detailed statement outlining the basis for his

conclusions. Admin. Rec. at 1161-62. But, when D r . Kutcher

testified before the ALJ, he did not have the benefit of D r .

13 Wagner’s more thorough narrative discussing the bases for his

various conclusions about claimant’s impairments.

Dr. Wagner’s conclusions were also fully supported by the

testimony of claimant’s former roommate, Patricia Enoch (Admin.

Rec. at 100-06) and claimant’s daughter (Admin. Rec. at 407-08).

And, as the Commissioner himself has noted, such testimony can be

particularly useful when trying to determine the onset date of

progressive impairments, like clamant’s.2

In determining the date of onset of disability, the date alleged by the individual should be used if it is consistent with all the evidence available. . . . If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to . . . furnish additional evidence regarding the course of the individual’s condition.

SSR 83-20, Titles II and XVI: Onset of Disability,

at *3 (1993). See also Id. at * 5 (“Nonmedical Sources of

Evidence - Lay evidence usually relates to the individual’s

2 As noted above, the Commissioner acknowledges that claimant’s physical and mental impairments progressed to the point that she was disabled as of July 1 , 2007. The question presented to the ALJ was whether those impairments were sufficiently severe to render claimant disabled on or before her date last insured, June 3 0 , 2004.

14 reasons for stopping work, activities since the alleged onset

date, specific instances of abnormal behavior, and medical

treatment history, if any. Such evidence should be evaluated in

conjunction with the medical record to determine whether an

earlier onset date can be established.”). Nevertheless, the ALJ

largely dismissed the testimony given by those women, affording

it only “some weight.” Admin. Rec. at 18-19.

That claimant’s friend and daughter are, as noted by the

ALJ, “not acceptable medical sources,” Admin. Rec. at 18-19, is

not particularly relevant. Their testimony was not offered to

establish the existence of a medical impairment. Rather, it was

introduced to show the day-to-day effects of claimant’s

impairments and the side-effects of her many medications. And,

their testimony fully supported the conclusions of D r . Wagner

(though the medical expert, D r . Kutcher, testified that he

consciously disregarded such testimony when evaluating whether

Dr. Wagner’s conclusions were adequately supported by the record

evidence. Admin. Rec. at 115). 3

3 The court has no doubt that the ALJ fully understood the reason claimant’s friend and daughter were called to testify. Unfortunately, however, his written decision implies that he discounted the value of their testimony, at least in part, because they were not acceptable medical sources - something they never purported to b e . See, e.g., Admin. Rec. at 18 (“[Ms.

15 In concluding that claimant was not disabled at any time

prior to the expiration of her insured status, the ALJ afforded

“great weight” to the opinions of two physicians: the testifying

medical expert, D r . Kutcher, and the non-examining state agency

physician, D r . Jonathan Jaffe. Admin. Rec. at 1 7 . That was

likely an error. First, neither of those physicians examined

claimant; both based their opinions exclusively on a review of

her medical records. But, when D r . Kutcher testified before the

ALJ, he did not have the benefit of D r . Wagner’s more thorough

narrative in which he discussed the medical bases for his various

conclusions about claimant’s impairments. See Admin. Rec. at

1160-62. And, D r . Jaffe’s report addresses only claimant’s

physical impairments and limitations; it was not intended to

address, nor does it address, claimant’s significant mental

impairments. See Id. at 888-895. Consequently, D r . Jaffe had

the benefit of neither D r . Wagner’s treatment notes nor his

detailed written statement. Plainly, that was compelling and

Enoch’s] opinion is not supported by the medical evidence and she is not an acceptable medical source under the regulations.”). Of course neither M s . Enoch nor claimant’s daughter gave any “opinions” about either claimant’s medical condition or whether she was “disabled” under the Act. Instead, they merely recounted their observations of claimant, discussed the deterioration of her condition, described how she dealt with her various impairments on a day-to-day basis, and talked about her ability (or inability) to perform various activities of daily living.

16 highly relevant evidence which, had D r . Kutcher and D r . Jaffe had

access to i t , might well have altered their own opinions.

And, finally, in reaching their conclusions about claimant’s

capabilities, both D r . Kutcher and the ALJ relied upon the

opinions expressed by Amy Feitelson, M.D. D r . Feitelson

performed a consultative psychiatric examination of claimant in

December of 2002. Admin. Rec. at 424-28. But, the conclusions

drawn by D r . Feitelson are, at a minimum, suspect since she was

under the erroneous impression: (1) that claimant had never been

administered any psychiatric medications; and (2) that claimant

had never acted on her suicidal ideations. In fact, claimant had

been treated with psychiatric medications and had (apparently)

attempted suicide several times, beginning when she was in high

school. See Admin. Rec. at 1091 (report that claimant had tried

“to kill herself four or five times in the past” and, on at least

one occasion, “sliced her wrists”). See also Id. at 4 8 ; 81-83

(claimant testified before the ALJ that she tried to commit

suicide at age 17 and, later, attempted to kill herself with a

firearm, but her husband intervened and stopped h e r ) .

17 Conclusion

The ALJ afforded only “some” or “little” weight to the

testimony of the three people who are likely most familiar with

claimant, the combined effects of her physical and mental

impairments, her day-to-day behaviors, her capacity to engage in

various activities, the side effects of her medications, and her

overall credibility in describing the extent (and impact) of her

impairments: claimant’s adult daughter, claimant’s friend and

former housemate, and claimant’s long-time treating psychologist.

While the ALJ is certainly permitted to discount the testimony of

witnesses, the court cannot conclude that he adequately explained

his decision to do so in this case.

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

decision of the Commissioner (document n o . 10) is granted to the

extent she seeks a remand for further proceedings. The

Commissioner’s motion to affirm his decision (document n o . 12) is

denied.

Pursuant to sentence four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

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

accordance with this order and close the case.

SO ORDERED.

Steven J./McAuliffe ,hief Judge

August 9, 2012

cc: Elizabeth R. Jones, Esq. Robert J. Rabuck, Esq.

19