Russell I . Jenna v . SSA 13-CV-270-SM 04/15/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Russell Irving Jenna, Claimant

v. Case N o . 13-cv-270-SM Opinion N o .

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

O R D E R

Pursuant to

(g) and 1383(c)(3), Claimant,

Russell Irving Jenna, moves (doc. n o . 8 ) to reverse the

Commissioner’s decision denying his application for Social

Security Disability Insurance Benefits under Title II of the

Social Security Act and Supplemental Security Income Benefits

under Title XVI of the Act. See

, 1381 et seq.

The Commissioner objects and moves for an order affirming her

decision (doc. n o . 1 1 ) .

Factual Background

I. Procedural History

On November 8 , 2010, claimant filed applications for

Disability Insurance benefits (“DIB”) and Supplemental Security

Income benefits (“SSI benefits”), alleging that he had been

unable to work since July 2 0 , 2010. He asserts eligibility for benefits based on disabilities due to back problems, depression,

and anxiety. His applications for benefits were denied and he

requested an administrative hearing before an Administrative Law

Judge (“ALJ”).

Claimant, who was represented by counsel, appeared and

testified before an ALJ on March 1 3 , 2012. An impartial

vocational expert testified at the hearing. On April 2 7 , 2013,

the ALJ issued his written decision, concluding that claimant was

not disabled. On April 2 3 , 2013, the Appeals Council denied

claimant’s request for review. Accordingly, the ALJ’s decision

became the final decision of the Commissioner, subject to

judicial review.

Claimant then filed a timely action in this court appealing

the denial of benefits. Now pending are claimant’s “Motion for

Order Reversing Decision of the Commissioner” (doc. n o . 8 ) and

the Commissioner’s “Motion for Order Affirming the Decision of

the Commissioner” (doc. n o . 1 1 ) .

II. Stipulated Facts

Pursuant to Local Rule 9.1(d), the parties submitted a Joint

Statement of Material Facts which, because it is part of the

2 court record (document n o . 1 2 ) , need not be recounted in this

opinion.

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.1 See

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

(1st Cir. 1991). Moreover, 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 Tsarelka v .

Secretary of Health & Human Services,

(1st Cir.

1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if

the record arguably could justify a different conclusion, so long

1 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). 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. Consolo v . Federal Maritime Comm’n.,

0 7 , 620 (1966).

3 as it is supported by substantial evidence.”). See also

Rodriguez v . Secretary of Health & Human Services,

1 8 ,

222 (1st Cir. 1981) (“We must uphold the [Commissioner’s]

findings in this case if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate to

support his conclusion.”).

In making factual findings, the Commissioner must weigh and

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

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (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

[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,

9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

4 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

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, claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v . Heckler,

(1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services,

, 7

(1st Cir. 1982)). Nevertheless, claimant is not required to

establish a doubt-free claim. The initial burden is satisfied by

the usual civil standard: a “preponderance of the evidence.” See

Paone v . Schweiker,

0 8 , 810-11 (D. Mass. 1982).

If claimant demonstrates an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform.

See Vazquez v . Secretary of Health & Human Services,

,

5 2 (1st Cir. 1982). See also

(g). If the

Commissioner shows the existence of other jobs that claimant can

perform, then the overall burden to demonstrate disability

remains with claimant. See Hernandez v . Weinberger,

(1st Cir. 1974); Benko v . Schweiker,

9 8 ,

701 (D.N.H. 1982).

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the testimony of claimant or other

witnesses; and (3) claimant’s educational background, age, and

work experience. See e.g., Avery v . Secretary of Health & Human

Services,

9 , 23 (1st Cir. 1986); Goodermote,

. When determining whether a claimant is disabled, the ALJ

is also required to make the following five inquiries:

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

(2) whether claimant has a severe impairment;

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

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

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

6

. Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he 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 her

decision.

Discussion

I. 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

. He first determined that claimant had not been

engaged in substantial gainful employment since his alleged onset

of disability. Next, he concluded that claimant has the severe

impairments of degenerative disc disease, obesity, tinnitus,

sleep apnea, status post left hand surgery for hyper-extended

thumb, attention deficit hyperactivity disorder, and mood

7 disorder with anxiety and depression. Administrative Record

(“Admin. Rec.”) at 17-18. The ALJ found to be “non-severe”

claimant’s bilateral knee pain, compression neuropathy status

post left elbow surgery, right-sided carpel tunnel syndrome,

labrynthitis, and pain and numbness in feet and toes.

at 1 8 .

He further determined that claimant “does not have an impairment

or combination of impairments that meets or medically equals the

severity of one of the listed impairments.”

at 2 0 .

The ALJ concluded that claimant had the residual functional

capacity:

to perform light work as defined in 20 CFR 404.1567(b) . . . except he is able to lift and/or carry up to 15 pounds occasionally and up to 10 pounds frequently and to sit, stand, and/or walk consistent with sedentary work with an ability to do each of these positions for up to one hour at a time without interruption. He is able to occasionally operate foot controls primarily with the left foot. He is unable to climb, ladders, ropes or scaffolds; kneel; or crawl. He is able to occasionally climb stairs and ramps; crouch; and stoop. He is able to perform frequent but not constant fingering with his left (non-dominant) hand. He is unable to work in a very quiet environment but can work in an office environment or an environment with others around where there is some background noise. He is able to understand, remember and carry out moderately complex (4-5 step) tasks. He is able to maintain focus for about an hour at a time with a couple of minute breaks to re-focus. He is able to work around other people and to interact with coworkers on routine matters and to interact with the public on superficial issues but with a need to avoid crowds with the term crowd being defined as a group of more than 5-6 people that the claimant does not know.

at 2 2 .

8 The ALJ determined, therefore, that, although claimant “is

unable to perform any past relevant work,” he is capable of

performing other “jobs that exist in significant numbers in the

national economy.”

at 2 7 . Consequently, the ALJ concluded

that claimant was not “disabled,” at any time relevant to his

decision.

at 2 9 .

II. Claimant’s Arguments

Claimant argues for reversal of the Commissioner’s final

decision on several grounds. Because claimant’s argument

relating to functional limitations in the use of his left hand is

meritorious and warrants remand, there is no need to consider the

remaining arguments.

Claimant challenges the ALJ’s RFC finding that he is limited

to “frequent but not constant fingering with his left (non-

dominant) hand.” He says that the ALJ should have assessed a

more restrictive limitation to “occasional” fingering and

handling, arguing that substantial evidence does not support the

ALJ’s less restrictive limitation. As the VE’s testimony

established, in the context of the other physical and mental

limitations contained in the RFC, a limitation to “occasional”

fingering and handling would render claimant unable to perform

jobs in the national economy. See

at 2 8 .

9 In identifying claimant's functional limitations, the ALJ

must “assess ... [his] work-related abilities on a function-by-

function basis.” SSR 96–8p,

, at *1 (1996).

Although the ALJ may supportably determine claimant's RFC without

the benefit of an expert “super-evaluator,” Evangelista v . Sec'y

of Health & Human Servs.,

(1st Cir. 1987), in

most instances “an expert is needed” to help the ALJ assess the

“extent of functional loss.” Roberts v . Barnhart,

, at *2 (1st Cir. 2003). See also Puig v . Astrue,

, at *4 (D.N.H. April 2 1 , 2009) (DiClerico, J.) (“In

general, an ALJ, as a lay person, cannot interpret a claimant's

medical records to determine his residual functional capacity.

Instead, an ALJ must rely on residual functional capacity

evaluations done by a physician or another expert.”)

There i s , here, no credited medical source opinion regarding

claimant’s hand limitations. The ALJ rejected D r . MacEachran’s

opinion that claimant had no limitations in the use of his hand.

He also permissibly rejected D r . Sengupta’s November 2011 opinion

that claimant was limited to “occasional” fingering and handling

because, among other reasons, D r . Sengupta treated claimant for

back, not hand, problems. See Admin. Rec. at 2 6 . Without a

medical expert’s opinion regarding claimant’s functional

limitations in the use of his left hand, the ALJ’s RFC

10 determination is without substantial support in the record. See

Staples v . Astrue,

, at *3 (D. M e . June 2 9 , 2010).

The Commissioner, necessarily, invokes the narrow exception

to the general rule that an expert opinion is required. Under

that exception, an ALJ may “‘render a commonsense judgment about

functional capacity’” when “‘the medical evidence shows

relatively little physical impairment.’” Couitt v . Astrue,

, at *8 (D.N.H. April 3 , 2012) (Barbadoro, J.) (quoting

Manso-Pizarro v . Secretary of Health & Human Servs.,

5 ,

17 (1st Cir. 1996)). That exception, however, is inapplicable

under the circumstances of this case. The ALJ was not entitled

to make a commonsense assessment of the record without first

addressing the opinion of claimant’s primary care provider, nurse

practitioner Kimberly Fader, that claimant had more than a mild

limitation in the use of his left hand.2

Fader opined that claimant could not work full days and was

limited to “occasional” reaching, grasping, and fingering with

his left hand. The ALJ discussed, and rejected, Fader’s opinion

2 Although “[i]nformation from . . . ‘other sources’” such as nurse practitioners, “cannot establish the existence of a medically determinable impairment,” such information, especially when “based on special knowledge of the individual,” can “provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p,

, at * 2 .

11 as to full-time work, but failed to mention her opinion regarding

claimant’s use of his left hand.3 Although the ALJ was entitled

to find the opinion “unworthy of credit, [he] was not entitled to

find it unworthy of comment.” Lord v . Apfel,

,

13 (D.N.H. 2000) (Barbadoro, J . ) . See also Maio v . Astrue,

, at *4 (D.N.H. June 7 , 2011) (Laplante, J.) (“the ALJ

could not simply ignore [nurse practitioner] Wright’s opinion” on

the ground that she was “not an acceptable medical source”)

(internal quotation marks and alteration omitted); SSR 06-3p,

, at * 6 . (“[T]he case record should reflect the

consideration of opinions from medical sources who are not

‘acceptable medical sources’ and from ‘non-medical sources’ who

have seen the claimant in their professional capacity.”).

Confronted with the ALJ’s silence, the court cannot

determine whether Fader’s opinion “was considered and implicitly

discredited or instead was simply overlooked.” Lord,

3 . The ALJ’s failure to address Fader’s opinion

regarding claimant’s use of this left hand was, therefore, legal

3 C f . Spinale v . Barnhart,

, at *6 (D.N.H. Jan. 5 , 2004) (Barbadoro, J.) (finding that the ALJ ignored relevant evidence where he “render[ed] a decision referencing only the first paragraph in D r . Feitelson's letter dated January 1 1 , 2002, describing Spinale's diagnosis and irritability, but omit[ed] any indication of the second paragraph where D r . Feitelson noted that Spinale's symptoms prevented her from working and would continue to do so for 12 months”).

12 error. See Lord,

. Remand is necessary.

See Frantz v. Astrue,

(10th Cir. 2007)

(remanding to the district court with directions to remand to the

Commissioner where “the ALJ referred to some of the evidence

gleaned from [the nurse’s] treatment notes but did not discuss

what weight he gave to her opinion on the severity of

[claimant’s] limitations and on the functional effect those

limitations have on her overall ability to work.”) That is not

to say that the record discloses an overlooked disability, but

merely that the ALJ’s decision here does not adequately support

the conclusion reached.

Conclusion

Claimant's motion to reverse the decision of the

Commissioner (doc. no. 8) is granted. The Commissioner's motion

to affirm his decision (doc. no. 11) is denied. This case is

remanded for further proceedings. Because remand is pursuant to

sentence four of

(g), the Clerk of the Court is

instructed to enter judgment in accordance with this order and

close the case.

SO ORDERED.

____________A___________ /United States District Judge

April 1 5 , 2014

13 cc: Tamara N . Gallagher, Esq. Karen B . Fitzmaurice, Esq. Robert J. Rabuck, Esq.

14