Waters v. SSA CV-13-45-JL 3/7/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jennifer L. Waters

v. Civil No. 13-CV-45-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Jennifer Waters appeals the Social Security Administration's

("SSA") denial of her applications for a period of disability,

disability insurance benefits, and Supplemental Security Income.

An administrative law judge at the SSA ("ALU") ruled that, despite

Waters' bipolar disorder, she retains the residual functional

capacity ("RFC") to perform her past relevant work as a

housekeeper and laundry worker, and is therefore not disabled.

See 20 C.F.R. §# 404.1505(a), 416.905(a). The Appeals Council

later denied Waters' request for review of the ALU's decision, see

i d . §§ 404.967, 416.1467, with the result that the ALU's decision

became the SSA's final decision on Waters' applications, see i d .

§§ 404.981, 416.1481. Waters then appealed the decision to this

court, which has jurisdiction under

(g) (Social

Security).

Waters has filed a motion to reverse the decision, see L.R.

9.1(b) (1), arguing, among other things, that the ALU erred in

concluding that Waters' statements concerning the intensity. persistence, and limiting effects of her symptoms were not

credible, and in failing to make any findings concerning the

physical and mental demands of Waters' past relevant work. The

Commissioner of the SSA maintains that the ALJ's decision is

unassailable, and has cross-moved for an order affirming it. See

L.R. 9.1(d). After careful consideration, the court agrees with

Waters that the ALJ's decision was flawed for both of the reasons

that Waters asserts, and thus grants her motion to reverse (and

denies the Commissioner's motion to affirm) the ALJ's decision.

I. Credibility determination

In concluding that Waters retains the RFC to perform a full

range of work at all exertional levels, with two nonexertional

limitations (i.e., she can only understand, remember, and carry

out "short and simple" instructions, and cannot wait on the

public), the ALJ considered Waters' subjective reports concerning

the symptoms of her impairment. Although the ALJ found that

Waters' bipolar disorder could reasonably be expected to cause

these symptoms--which included mood swings, impulsivity, periods

of rage, anger outbursts, visual and aural hallucinations, and an

inability to handle stress and routine changes--he concluded that

Waters' "statements concerning the intensity, persistence, and

limiting effects of these symptoms are not credible." Admin. R.

at 17. While there may well be good reasons for this conclusion,

2 the court is unable to discern them from the ALJ's written

decision, and is thus constrained to reverse the decision.

SSA guidance recognizes that "individuals may experience

their symptoms differently and may be limited by their symptoms to

a greater or lesser extent than other individuals with the same

medical impairments," and that symptoms "sometimes suggest a

greater severity of impairment than can be shown by objective

medical evidence alone." Social Security Ruling ("SSR") 96-7p,

Titles II and XVI: Evaluation of Symptoms in Disability Claims:

Assessing the Credibility of an Individual's Statements,

, at *3 (S.S.A.. 1996) . In cases where an individual's claim

of disability cannot be determined solely on the basis of the

objective medical evidence, ALJs must carefully consider "any

statements of the individual concerning his or her symptoms," and

"then make a finding on the credibility of the individual's

statements about symptoms and their functional effects." I d . at

*3-4 .

As SSR 96-7p explains:

The reasons for the finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are not credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear

3 to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.

I d . at *4. In other words, "[a]n ALJ is free to disbelieve a

claimant's subjective testimony; however, he or she must make

specific findings as to the relevant evidence he considered in

determining to disbelieve [the claimant]," i.e., by identifying

"what testimony is not credible and what evidence undermines the

claimant's complaints." Kalloch v. Astrue, No. ll-cv-522,

, at * (D.N.H. Sept. 18, 2012) (internal quotations and

alterations omitted), rept. & rec. adopted,

(D.N.H. Oct. 15, 2012) .

Here, the ALJ's assertion that Waters' statements regarding

her symptoms were "not credible" can only be characterized as

conclusory. That assertion is followed by several paragraphs

discussing the record evidence, but it is by no means clear to the

court that the ALJ meant these paragraphs to function as an

explanation of his credibility determination. To the contrary,

those paragraphs appear to be intended to explain the ALJ's

assessment of Waters' RFC. In any event, the ALJ's decision is

not "sufficiently specific to make clear to" this court which of

Waters' specific complaints the ALJ found not credible, nor the

4 specific evidence the ALJ considered in coming to that conclusion.

It therefore fails to comply with SSR 96-7p.

Beyond that, the ALJ's decision says very little about the

factors articulated in

(c) and 416.929(c),

which an ALJ "must consider in addition to the objective medical

evidence when assessing the credibility of an individual's

statements."1 SSR. 96-7p,

at *3. "Detailed written

discussion" of those factors "is desirable" in order to enable a

1Those factors are: 1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. m 404.1529(c), 416.929(c). The ALJ's written decision mentions some of Waters' activities of daily living and some of the medication she has taken, but is otherwise devoid of any discussion of these factors--including, significantly, the "duration, frequency, and intensity" of Waters' claimed symptoms and the "[f]actors that precipitate and aggravate" them.

5 reviewing court to evaluate the basis for the ALJ's credibility

determination. Lalime v. Astrue,

(citing

Frustaglia v. Sec'y of HHS,

(1st Cir. 1987)).

It is not strictly necessary; "an ALJ need not slavishly discuss

each of the factors, and may satisfy her obligation to consider

the factors simply by exploring them at the administrative

hearing." Morris v. Colvin, No. 12-cv-280-JL,

, at

*2 n.l (D.N.H. June 6, 2013) (internal quotations and citations

omitted). Here, however, the transcript of the administrative

hearing is nearly as devoid of discussion regarding these factors

as the ALJ's decision itself.

In short, the ALJ's decision "simply does not explain, in any

way," the reasons for his credibility determination, and thus must

be reversed because the court cannot determine whether that

determination is supported by substantial evidence.2 Weaver v.

21he court acknowledges that Waters advanced a slightly different argument regarding the sufficiency of the ALJ's credibility determination. Rather than arguing that the ALJ had not explained his findings in accordance with SSR 96-7p, Waters argued that the ALJ had "ignored pertinent evidence bearing on [her] credibility." Memo, in Supp. of Mot. to Reverse (document no. 8-1) at 13. The Commissioner might understandably protest that, in light of this fact. Waters has waived any argument that the ALJ's explanation of his findings was not up to snuff. The ALJ's insufficient explanation, however, makes it impossible for the court to analyze the argument that Waters actually did make, so her failure to seize upon the insufficiency presents no hurdle to the court considering it here. As a further aside, the court notes that Waters has also challenged the weight the ALJ assigned to the medical opinion

6 Astrue, No. 10-cv-340-SM,

, at *9 (D.N.H. May 25,

2011) (emphasis in original), rept. & rec. adopted,

(D.N.H. June 27, 2011) . On remand, the ALJ should

thoroughly explain the bases for any finding he makes regarding

Waters' credibility, as reguired by SSR 96-7p and §§ 404.1529(c)

and 416.929 (c) .

II. Past relevant work

As mentioned at the outset, the ALJ also concluded that

Waters is able to perform her past relevant work as a housekeeper

and laundry worker. The written decision explained that the ALJ

had compared Waters' RFC "with the physical and mental demands" of

that work, and found that Waters "is able to perform it as

actually and generally performed." Admin. R. at 19. The decision

did not, however, explain what "the physical and mental demands"

evidence in the record. Among other things. Waters argues that the ALJ erred in assigning "little weight" to the opinion of a state examiner that Waters experienced repeated functional loss in the area of work-related stress. The ALJ's decision in this regard was influenced by the fact that the examiner's opinion was "based on [Waters'] subjective statements"--which, of course, the ALJ did not find credible. Admin. R. at 18. Because the case is being remanded to the ALJ to re-evaluate Waters' credibility, the ALJ's assessment may change, and the court need not address this argument at this time. (Similarly, to the extent that Waters believes the ALJ did not adequately develop the record during his questioning of her at the administrative hearing, that is also a matter that is best addressed on remand, rather than in this court.)

7 of Water's previous jobs were. Again, this hinders review of the

ALJ's finding and warrants remand.

SSA guidance mandates that "[t]he rationale for a disability

decision must be written so that a clear picture of the case can

be obtained," and "must follow an orderly pattern and show clearly

how specific evidence leads to a conclusion." SSR 82-62, Titles

II and XVI: A Disability Claimant's Capacity to Do Past Relevant

Work, in General,

, at *4 (S.S.A. 1982) . This means,

among other things, that when the ALJ finds that a claimant has

the RFC to perform a past relevant job, the ALJ's "determination

or decision must contain among the findings" a specific finding of

fact "as to the physical and mental demands of the past

job/occupation." I d . (emphasis added). As noted, the ALJ failed

to make any such finding here. The Commissioner does not dispute

this, but argues that the decision is nonetheless sound because

the record contained information regarding the demands of Waters'

housekeeping and laundry jobs, in the form of (1) Waters'

description of those jobs in her Work History Report, and (2) a

cursory, 1-page "vocational assessment" that identifies a Waters'

jobs as corresponding to a listing in the Dictionary of

Occupational Titles ("DOT").

The presence of that evidence in the record does not remedy

the ALJ's omission. It is true that, in some cases, an ALJ's

failure to make specific findings regarding the physical and

8 mental demands of the claimant's past relevant work may be

harmless, i.e., where it is clear that the ALJ relied upon "the

claimant's own description of the job demands in her Work History

Report and at the hearing," Ormond v. Colvin,

, or

upon the DOT's description of the job demands, see Sullivan v.

Halter,

. Yet it is by no means clear that the

ALJ relied upon either of these sources in rendering his decision

in this case (or that he reasonably could have). The description

of the mental demands of Waters' past work provided in her Work

History Report is at best superficial, and was not meaningfully

developed by her hearing testimony.® And, as the Commissioner

herself notes, the written decision did not cite the DOT or any

other vocational evidence, either in its discussion of Waters'

past relevant work or anywhere else. This court cannot "assume or

infer" that the ALJ relied upon the DOT listings; " [m]oreover,

even if the court could assume that the ALJ made his determination

by reference to the DOT, there is no way of knowing whether he

relied on the listing that [the Commissioner], or even this court,

3While the court has declined to address Waters' argument that the ALJ erred in failing to develop the record, see n.2, supra, it observes that, in light of the superficiality of the Work History Report and Waters' pro se status at the time of the administrative hearing, the ALJ probably should have thoroughly examined Waters regarding the demands of her previous jobs at the hearing. C f . Berthiaume,

at *5 (where claimant's application for benefits provided only vague information regarding her past jobs, ALJ's "duty to further develop the record" was triggered).

9 might think most closely describes claimant's past relevant work."

Berthiaume v. Apfel, No. 98-cv-419,

, at *6 (D.N.H.

Sept. 30, 1999). In these circumstances, the ALJ's failure to

make any finding as to the physical and mental demands of Waters'

past relevant work makes it "impossible to conclude that

substantial evidence supported the finding that [Waters] had the

RFC to return to [her] past work," and requires remand. Stephens

v. Barnhart,

(1st Cir. 2002) .

III. Conclusion

For the foregoing reasons. Waters' motion to reverse the

ALJ's decision4 is GRANTED, and the Commissioner's motion to

affirm it5 is DENIED. See

(g). The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

Jos/ph N. Lapiante United States District Judge

Dated: March 7, 2014

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

4Document no. 8.

5Document no. 13.

10