Meagan M. White v. SSA 12-CV-419-SM 2/26/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Meagan M. White, Claimant

v. Case No. 12-cv-419-SM Opinion No.

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

O R D E R

Pursuant to

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

Meagan M. White, 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")

and Supplemental Security Income Benefits under Title XVI of the

Act,

, 1381, et se g . See document no. 9. The

Commissioner objects and moves for an order affirming her

decision, document no. 11.

Background

I. Procedural History

On March 23, 2009, claimant (who was then 24 years old)

filed an application for Social Security Disability Insurance

Benefits ("DIB benefits") and Supplemental Security Income

("SSI"), alleging that she had been unable to work since February

17, 2009. She asserts eligibility for benefits based on disabilities due to depression and anxiety. Her application for

benefits was denied and she requested an administrative hearing

before an Administrative Law Judge (ALJ).

On November 7, 2011, claimant, her attorney, and an

impartial vocational expert appeared before an ALJ. On December

9, 2011, the ALJ issued a written decision, finding that claimant

was not disabled. On August 16, 2012, 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.

II. Stipulated Facts

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

Statement of Material Facts, which is part of the court record

(doc. no. 12), and need not be recounted in detail in this

opinion.

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

2 cause for a rehearing." Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1 3 8 3 (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 adeguate 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) .

Conseguently, provided the ALJ's findings are properly

supported, 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); Rodriguez v.

Secretary of Health & Human Services,

(1st Cir.

1981) .

3 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). See also 42 U.S.C. § 1382c(a)(3). 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,

(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

Vazguez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(g) and

416.912(g).

4 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) . See also 42 U.S.C. § 1382c(a) (3) (B) .

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 ALU's Decision

The ALJ concluded that claimant was not disabled within the

meaning of the Act. In reaching her decision, the ALJ properly

5 employed the mandatory five-step sequential evaluation process

described in

. She first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability. Next, she concluded that

claimant has the severe impairments of "affective disorder and

anxiety disorder." Administrative Record ("Admin. Rec.") at 16.

At step three, the ALJ found that claimant "does not have an

impairment or combination of impairments that meets or medically

equals the severity of one of the listed impairments."

Rather, the ALJ found only "mild restriction" in activities of

daily living; "moderate difficulties" in social functioning; and

"mild to moderate difficulties" in concentration, persistence,

and, pace. Id., at 16-17.

Next, the ALJ found that claimant retained "the residual

functional capacity to perform a full range of work without any

exertional limitations," except that "[s]he is limited to

unskilled work in an environment where tasks need to be performed

in a solitary manner, without any tandem or teamwork tasks." Id.

at 18. The ALJ further found that "[c]ontact with the general

public, coworkers and supervisors must be limited to brief and

superficial interactions," and claimant "must avoid jobs with

strict production quotas." Id.

6 Based upon the assessed RFC and the testimony of an

independent vocational expert, the ALJ concluded that claimant

"is capable of performing past relevant work as a shipping and

receiving packer and as a cashier," and other jobs existing "in

the national economy." I_d. at 20-22. Conseguently, the ALJ

concluded that claimant was not "disabled," as that term is

defined in the Act, through the date of her decision. I_d. at 22.

II. Claimant's Arguments

On appeal, claimant argues that the ALJ committed numerous

errors which reguire remand. The ALJ's decision is, in some

respects, confusing, and it does contain factual errors, but none

of that would, in isolation, warrant a remand.1 Remand is

warranted, however, on the more straightforward ground that the

record does not contain an expert mental functional capacity

assessment necessary to support the ALJ's RFC, and because the

ALJ "sought to fill this void . . . with [her] lay inferences."

Bond v. Social Security Admin., 2 012 WL 313727, at *10 (D. Me.

Jan. 30, 2012) (Kravchuk, M.J.), aff'd

, *1 (D. Me.

Feb. 21, 2012) .

1 The claimant and the Commissioner devote many pages to attacking and defending, respectively, the confusing aspects of the ALJ's decision. The court need not decide, however, which party offers the best reconciliation of the decision's internal inconsistencies because other grounds to remand plainly exist.

7 In identifying claimant's functional limitations, the ALJ

must "assess . . . her 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), "an

expert is needed" to help the ALJ assess the "extent of

functional loss" in those instances where there is evidence that

the claimant's functional limitations are more than "'relatively

mild.'" Roberts v. Barnhart,

, at *2 (1st Cir.

2003) (guoting Manso-Pizarro v. Sec'y of Health & Human Servs.,

(1st Cir. 1996)). See also Couitt v. Astrue, 2 012

WL 1114295, at *7-8 (D.N.H. April 3, 2012) (Barbadoro, J.)

(finding that the ALJ was not entitled to exercise his lay

judgment about functional limitations where the record suggested

more than mild limitations); Puig v. Astrue,

, at

*4 (D.N.H. April 21, 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.")

The ALJ, here, made the following RFC determination:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work without any exertional limitations. She is limited to unskilled work in an environment where tasks need to be performed in a solitary manner, without any tandem or teamwork tasks. Contact with the general public, coworkers and supervisors must be limited to brief and superficial interactions. She must avoid jobs with strict production guotas.

Admin. Rec., at 18.

In rendering her RFC, the ALJ declined to defer to any of

the medical source opinions. The ALJ gave "little weight" to the

opinion of the state agency medical consultant, Craig Stenslie,

Ph.D.; "little weight" to the opinion contained in the state APD

Medical Eligibility Review Summary; "some, but not great weight"

to the opinion of Donna Moore, White's treating therapist; and

"some weight" to Dr. Stern's conclusion that claimant had

moderate limitations in activities of daily living, social

interactions, task performance, and stress reaction. The ALJ was

thereby left with no expert opinion to support the functional

limitations contained in her RFC. See Staples v. Astrue,

, at *3 (D. Me. June 29, 2010) (Rich, M.J.) (holding that

the ALJ, in assessing "little" or "some" weight to all of the

expert reports, "essentially rejected all" of them, and

therefore, "craft[ed]" her RFC without evidentiary support),

aff'd

, at *1 (D. Me. July 19, 2010) . Because

evidence existed to suggest that claimant's functional

limitations were more than "mild," the absence of any credited expert opinion as to claimant's functional limitations renders

the ALJ's RFC without adequate evidentiary support.

The Commissioner argues that the ALJ's RFC is saved by her

alternative finding that the specific limitations contained in

her RFC were, in any event, "consistent" with Dr. Sterns'

findings of "moderate" limitations in four broad categories. The

ALJ reached that alternative conclusion by making a lay

assumption that "moderate" limitations in the four broad

categories translate into the specific functional limitations the

ALJ crafted. The ALJ determined that: "One must assume that a

moderate limitation would not preclude the activities." Admin.

Rec. at 20.

It is true that, under Falcon-Cartagena v. Comm'r of Social

Security,

, at *2 (1st Cir. Oct. 11, 2001) and

Quintana v. Comm'r of Social Security,

, at *1

(1st Cir. Oct. 7, 2004), it is not always error for an ALJ to

infer that "moderate" limitations in some areas do not preclude

work capacity. But unlike in those cases, here there is no

detailed RFC assessment in the record to support the inference

the ALJ drew. See e . g . Falcon-Cartagena,

, at *2

(record contained detailed RFC assessments from two

psychiatrists); Quintana,

, at *1 (recordincluded

10 detailed mental residual functional capacity report of non­

examining consultants). Dr. Sterns's opinion, which was not a

detailed RFC assessment and which did not define "moderate,"

compare Hines v. Astrue,

, at *10 (D.N.H. July 9,

2012) (Barbadoro, J.), cannot by itself, therefore, support the

ALJ's findings regarding claimant's specific functional

limitations. See Taylor v. Astrue,

, at *3 (D.

Me. May 18, 2010) (ALJ's RFC findings were without factual

support where the record did not contain a credited, detailed RFC

assessment by a medical expert). In short, the ALJ impermissibly

filled the evidentiary void with her "lay inference[]." Bond,

, at *10.

Accordingly, the ALJ's step four "comparison of the demands

of claimant's past work with her mental functional capacity . . .

is not supported by substantial evidence" because the comparison

was "based on an invalid RFC assessment." Roberts,

, at *2 (remanding to Commissioner where the ALJ's RFC

was based only on her lay assumptions).

11 Conclusion

Claimant's motion to reverse the decision of the

Commissioner (doc. no. _9) 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.

Smeven J/ McAuliffe United States District Judge

February 26, 2014

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

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