Susan Robar v. SSA 12-CV-502-SM 2/10/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Susan Robar, Claimant

v. Case No. 12-cv-502-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g), claimant, Susan Robar, moves

to reverse or vacate 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 her decision.

For the reasons discussed below, claimant's motion is

granted to the extent it seeks a remand for further proceedings,

and the Commissioner's motion is denied. Factual Background

I. Procedural History.

In 2010, claimant filed an application for Disability

Insurance Benefits, alleging that she had been unable to work

since March 8, 2007 (she subseguently amended her alleged onset

date to February 27, 2010) . That application was denied and she

reguested a hearing before an Administrative Law Judge ("ALJ").

In January of 2012, claimant, her attorney, and a vocational

expert appeared before an ALJ, who considered claimant's

application de novo. Two weeks later, the ALJ issued his written

decision, concluding that claimant was not disabled, as that term

is defined in the Act, at any time before her alleged onset date

through the date of his decision (January 27, 2012) . I_d. at 24.

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

Appeals Council, which denied her reguest for review.

Accordingly, the ALJ's denial of claimant's application for

benefits became the final decision of the Commissioner, subject

to judicial review. Subseguently, she 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. Claimant then

2 filed a "Motion for Order Reversing Decision of the Commissioner"

(document no. 9). In response, the Commissioner filed a "Motion

for Order Affirming the Decision of the Commissioner" (document

no. 12). Those motions are pending.

II. Stipulated Facts.

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

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 11), 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

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

3 accept as adequate to support a conclusion." Consolidated Edison

Co. v. NLRB,

(1938). It is something less than

a preponderance of the evidence, so 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.,

(1966). See also Richardson v. Perales,

(1971).

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,

4 Supp. 808, 810-11 (D. Mass. 1982) . If she 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

(f).

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). 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) .

5 With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm her

decision.

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 seguential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since her

alleged onset of disability: February 27, 2010. Admin. Rec. at

17. Next, he concluded that claimant suffers from Crohn's

disease, which constitutes a "severe impairment." M. at 17. He

also discussed her other alleged impairments - anemia, sinusitis,

staph infections, seizures, asthma, hypothyroidism, fatigue, and

chronic pain, but found that there was "little evidence that

these alleged impairments result in more than minimal, if any

limitation in the claimant's ability to perform work-related

activities." M. at 18. The ALJ then determined that claimant's

impairments, regardless of whether they were considered alone or

in combination, did not meet or medically egual one of the

impairments listed in Part 404, Subpart P, Appendix 1. I_d. at

20 .

6 Next, he 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 would

be "limited to only occasional interaction with the public,

coworkers, and supervisors. In addition, [she] is limited to the

performance of simple, routine, and repetitive tasks." Admin.

Rec. at 20-21. In light of those restrictions, the ALJ concluded

that claimant was not capable of returning to any of her prior

jobs. Id., at 23.

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, the ALJ concluded that,

notwithstanding claimant's exertional and non-exertional

limitations, she "is capable of making a successful adjustment to

other work that exists in significant numbers in the national

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).

7 economy." I_d. at 24. Consequently, he concluded that claimant

was not "disabled," as that term is defined in the Act, from her

alleged onset date (February 27, 2010) through the date of his

decision (January 27, 2012) .

Discussion

Claimant challenges the ALJ's decision on two grounds,

asserting that he erred: (1) by failing to properly address her

allegations of disabling pain and fatigue; and, as a consequence,

(2) by failing to properly determine her residual functional

capacity. Because the court agrees that the ALJ inadequately

supported his decision to discount the disabling effects of

claimant's chronic fatigue, it need only focus on that issue.

Claimant suffers from Crohn's disease (which is reasonably

well-managed with diet and medication), a seizure disorder,

chronic acute sinusitis with recurrent infections2, a major

depressive disorder, chronic iron deficiency anemia, and chronic

fatigue. Her anemia, fatigue, and depression are all causally

related to her Crohn's disease. And, as Dr. Corinne Replogle

(one of claimant's treating physicians) noted, claimant's "list

of diagnoses and limitations are significant even just added up.

2 Because of her Crohn's disease, claimant's recurrent infections cannot be treated with traditional oral antibiotics. but they are actually synergistic, [making them] even more

debilitating." Admin. Rec. at 476. See also Id. at 469 ("Mental

Impairment Medical Source Statement" prepared by claimant's

counselor, noting that claimant's "depression exacerbates [her]

fatigue and concentration.").

Prior to her alleged onset of disability, claimant led a

fairly active life: she was employed by the City of Concord as a

dispatcher for the fire department, she was a member of a health

club, she played recreational hockey, and she volunteered as a

youth hockey coach. As her health worsened, her depression and

fatigue appear to have become more acute. She lost her job,

became less active, and, eventually, had to stop volunteering as

a youth sports coach and moved in with her parents. There is no

suggestion of malingering. See, e.g.. Admin. Rec. at 473.

In the ALJ's written decision, there is only a single

reference to claimant's fatigue:

Although the treating physician, Alain Ades, MD, opined that given claimant's chronic fatigue "it is fairly obvious that she is unable to work" the medical record shows that her Crohn's disease is well controlled with medications.

Admin. Rec. at 22. That observation is, however, something of a

non-seguitur. That claimant's Chron's disease is reasonably well-managed with diet and medication, does not speak to her

allegedly disabling fatigue. Nor does it address the point that,

even though the Crohn's is well-managed, claimant still suffers

from chronic iron-deficiency anemia (and attendant fatigue) as a

result of malabsorption caused by that illness. See, e.g.. Id.

at 304, 647, and 761-82.

The ALJ dismissed claimant's allegations of chronic,

debilitating fatigue as unsupported in the record. But the

record is replete with references to her substantial fatigue.

See, e.g.. Admin. Rec. at 255, 268, 279, 427-28, 464, 478, 486-

87, 632, 637, 650, 654, 664, 672, 679, 692, 706, 714, 725, and

767. Treating professionals have used terms like "chronic,"

"persistent," "worsening," and "extraordinarily prominent" when

describing claimant's fatigue. In May of 2011, Dr. Ades,

claimant's treating gastroenterologist, noted that:

She continues to be extraordinarily fatigued. She describes herself as almost not being able to get out of bed on several occasions. I have told her that this has to do with her chronic inflammatory state. •k -k -k

I have again encouraged her application to Social Security, which has been going on for approximately four years. Given the chronic fatigue state it is fairly obvious to me that she is unable to work.

10 Admin. Rec. at 487 (emphasis supplied). In fact. Dr. Ades was

sufficiently convinced of the severity of claimant's impairments

- including her debilitating fatigue - that he apparently told

her that he was willing to testify on her behalf at any

disability hearings. See, e.g.. Id. at 486. And, contrary to

the ALJ's finding. Dr. Ades actually linked claimant's fatigue to

a verifiable, medically determinable, and well-documented

impairment: Crohn's disease and claimant's chronic inflammatory

state. Fatigue is also a well-documented side-effect of some of

claimant's numerous medications. See, e.g.. Id. at 465.

In short, the ALJ's conclusion that "[t]here is little

evidence that [claimant's] alleged impairments result in more

than minimal, if any limitation in the claimant's ability to

perform work-related activities," Admin. Rec. at 18, is not

adeguately supported by the record. The opinions of claimant's

treating physicians - most notably Dr. Andes and Dr. Replogle -

strongly suggest that claimant might well be incapable of

engaging in sustained gainful activity as a result of her

constellation of impairments, particularly as manifested by her

fatigue. See, e.g.. Admin. Rec. at 472-76 ("Physical Impairment

Medical Source Statement" completed by Dr. Replogle); 487 (Dr.

Andes opinion that it is "fairly obvious" that claimant is unable

to work). To sustainably discount those opinions to the degree

11 he did, given the absence of any suggestion of malingering, more

explanation by the ALJ was required. See, e.g.,

(c)(2). See also Social Security Ruling, Policy

Interpretation Ruling Titles II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions, SSR 96-2p,

(July 2, 1996).

Conclusion

The court is well aware of the substantial caseloads borne

by ALJs and the time constraints within which they must work.

Given those limitations, it is difficult, as a practical matter

for ALJs to discuss each factual finding in detail, with

supporting citations to the administrative record. Nevertheless,

in this particular case, the court is constrained to agree with

the claimant: the ALJ's discussion of her chronic fatigue is

insufficient and his decision to substantially discount the

opinions of claimant's expert treating physicians is inadequately

supported. Consequently, his conclusions about her ability to

engage in substantial gainful activity are not adequately

supported by the record.

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

decision of the Commissioner (document no. _9) is granted to the

extent she seeks a remand for further proceedings. The

12 Commissioner's motion to affirm her decision (document no. 1_2) is

denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated January 27, 2012, is vacated and this

matter is hereby remanded for further proceedings consistent with

this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Sxeven xeven J/ McAuliffe United States District Judge

February 10, 2014

cc: D. Lance Tillinghast, Esq. T. David Plourde, Esq.

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