UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John T. Collins, IV

v. Civil No. 13-cv-470-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to 42 U.S.C. ' 405(g), John T. Collins, IV, moves

to reverse and remand the decision of the Acting Commissioner of

the Social Security Administration, denying his application for

disability insurance benefits under Title II. Collins contends

that the Administrative Law Judge (AALJ@) erred at Steps Two and

Three of the sequential analysis. The Acting Commissioner moves

to affirm the decision.

Standard of Review

Disability, for purposes of social security benefits, is Athe inability to do 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.@ 20 C.F.R. ' 404.1505(a). The ALJ follows a five-

step sequential analysis for determining whether a claimant is

disabled. ' 404.1520. The claimant bears the burden, through the first four steps, of proving that his impairments preclude him from working. Freeman v. Barnhart,

(1st

Cir. 2001). At the fifth step, the Commissioner determines

whether other work that the claimant can do, despite his

impairments, exists in significant numbers in the national

economy and the Commissioner must produce substantial evidence

to support that finding. Seavey v. Barnhart,

(1st

Cir. 2001).

In reviewing the decision of the Acting Commissioner in a

social security case, the court Ais limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.@ Nguyen v. Chater,

(1st Cir. 1999); accord Seavey,

.

The court defers to the ALJ=s factual findings as long as they

are supported by substantial evidence. ' 405(g). ASubstantial

evidence is more than a scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.@ Astralis Condo. Ass=n v. Sec=y Dep=t of

Housing & Urban Dev.,

(1st Cir. 2010).

Factual Background

Collins is a high school graduate who served in the army

from February of 1995 to September of 2005. In 2003 and 2004,

Collins served in Iraq where he injured his back carrying

another soldier. He requested and was granted discharge from

full-time military service because of health conditions.

2 After discharge from the army, Collins worked in

construction until 2011. He also served in the National Guard

on a part-time basis. On December 20, 2011, Collins applied for

social security benefits based on physical and mental

impairments, including degenerative disc disease and post

traumatic stress disorder (APTSD@).

Because of chronic back pain, Collins had an MRI of the

spine on July 23, 2008. The results showed a protrusion and a

small herniation that was encroaching over the nerve root at L4.

Another small herniation was seen at L5-S1 with encroachment

over the L5 nerve root.

On March 8, 2010, Collins sought mental health counseling

at the Veterans Affairs Medical Center (AVAMC@) in Jamaica Plain.

Collins reported an increase in emotionality and difficulty with

anger management, along with other symptoms. He expressed

interest in a referral to the ACRV Program@ in Boston for

assistance with anxiety and anger management.

Collins was laid off from his construction job at the beginning of December of 2011. On December 12, 2011, at the

direction of his wife, Collins sought mental health medication

management at the Manchester VAMC. The assessment was that

Collins was experiencing exacerbation of his PTSD symptoms,

primarily anger. A few days later, Collins was seen at the

Manchester VAMC urgent care department because of back pain. He

was taking prescription medication without relief. He was

assessed with back spasms.

3 At a meeting at the Manchester VAMC on January 25, 2012,

Collins reported that he had stopped taking Effexor because of

the side effects and also stopped taking Abilify and Sertraline.

Although he was yelling less, his irritability and PTSD symptoms

continued. He was found to be alert, oriented, and having full

affect and organized thoughts. Irritability was his main

complaint.

On February 21, 2012, Collins had a physical therapy

consultation at the Manchester VAMC. He reported chronic back

pain in the lumbar region that had increased in frequency and

severity in the last few months. The examination showed

decreased sensation in the left thigh and calf and positive left

slump and left straight-leg test. The physical therapy

assessment was mechanical low back pain due to lumbar nerve-root

impingement that caused intermittent radiating pain and

decreased sensation and weakness in the left leg. Collins was

to undergo four to six weeks of traction therapy.

At a physical-therapy session in March of 2012, Collins reported that he had more pain after spending eleven hours snow

plowing and that his pain had been at 8 out of 10 in the morning

but decreased to 6 out of 10 by the time of the physical-therapy

session. He said that he had done his home exercises that

morning without difficulty. After several more sessions,

Collins was discharged from physical therapy on March 12, 2012,

because he had reached most goals. The plan was that he would

use a lumbar traction unit at home.

4 Collins had a therapy appointment for PTSD on March 12,

2012. His PTSD was evaluated for disability benefits through

the VA on March 23, 2012. The evaluator found that Collins=s

PTSD symptoms, depressed mood and anxiety, caused clinically

significant distress or impairment in social, occupational, or

other important areas of functioning. At a therapy session for

PTSD in May of 2012, the nurse practitioner found that Collins

had euthymic (neither high nor low) mood, full affect, and good

activities of daily living. In August of 2012, Collins was

alert and oriented but had a tense mood with a constricted

affect during most of the session.

Collins went to the Manchester VAMC in August of 2012

because of back pain that radiated down his left leg and caused

numbness in his big toe. X-rays of Collins=s lumbar spine showed

mild intervertebral disc space narrowing, vertebral endplate

sclerosis, and a small oseteophyte formation that was consistent

with mild degenerative disc disease.

Juliana Read, Ph.D. conducted a forty-minute consultative psychological examination of Collins in October of 2012. Dr.

Read found that Collins was slightly irritable but cooperative

and that his gait, posture, and mannerisms were normal. Collins

said that he injured his back when he picked up a fellow soldier

while serving in Iraq. Collins reported that he had symptoms of

hypervigilance, exaggerated startle reflex, flashbacks, and

panic attacks several times a week triggered by memories or

5 reminders of the war. Collins was continuing to serve in the

National Guard, teaching classes on weekends.

In her examination, Dr. Read found that Collins=s behavior

and thought content were within normal limits and that his

intellectual and cognitive functions were intact. Dr. Read

concluded that Collins was able to do activities of daily life,

drive, and handle finances. Despite irritability associated

with PTSD, Collins was able to communicate effectively and

interact appropriately with others. He could understand and

remember both simple and complex instructions and procedures and

could maintain attention and concentration. In the work

context, Collins could make simple decisions, interact

appropriately with supervisors, tolerate work stress, and

maintain a work schedule aside from his physical issues. Dr.

Read diagnosed PTSD and noted that Collins=s prognosis was

limited by the severity of his back pain.

Collins had a consultation at the Boston VAMC Pain Clinic

in October of 2012. Collins described his back pain as a band across his lower back with sharp and stabbing pain shooting down

his left leg. The physical examination showed that Collins had

limited range of lumbar motion due to pain and that his left leg

was weaker than his right leg. He was scheduled for a lumbar

epidural steroid injection.

On October 31, 2012, James Samson, an occupational

therapist, did a Functional Capacity Evaluation of Collins at

6 the request of a state-agency medical consultant, Burton Nault,

M.D. Samson noted that Collins arrived at the appointment

independently and was able to complete the paperwork while

seated with no apparent increased pain or discomfort. On

examination, Samson found that Collins had a full range of

motion and full strength in his cervical and lumbar spine,

elbows, wrists, hips, knees, and ankles but had increased pain

in the lumbar spine with motion and resistance. Based on his

examination, Samson concluded that Collins could lift and carry

twenty-five pounds occasionally; could sit, stand, and walk

occasionally; and could do postural activities, like crouching

and stooping, occasionally. Collins=s stamina appeared to be

full.

Jonathan Jaffe, M.D., a nonexamining state agency

physician, completed a Physical Functional Capacity Assessment

form on November 7, 2012, based on Collins=s records. Dr. Jaffe

found that Collins=s Adiscogenic and degenerative disc disease@

and his hearing loss were severe impairments. Despite those impairments, Collins would be able to lift and carry twenty-five

pounds occasionally and twenty pounds frequently, stand or walk

for about six hours in an eight hour work day, sit for about six

hours in an eight hour workday, and frequently do postural

activities. Dr. Jaffe concluded that Collins=s disc disease was

7 not at a Alisting level@ because Collins had retained sustainable

functional capacity.1

Nicholas Kalfas, Ph.D., a nonexamining state agency

psychologist, reviewed Collins=s records on November 9, 2012, and

completed a Psychiatric Review Technique form. Dr. Kalfas found

that Collins=s medically determinable impairments could be

expected to produce his symptoms. In Dr. Kalfas=s opinion,

Collins had mild restrictions in the activities of daily living;

mild difficulties in social functioning; no difficulties in

maintaining concentration, persistence, or pace; and no repeated

episodes of decompensation.

On January 10, 2013, Collins went to the Pain Management

Clinic at the Boston VAMC for a lumbar steroid injection for his

chronic low back pain and radicular pain in his left leg.

During that appointment, the treating physicians, Drs. George

Hanna and Ivan Valovski, reviewed the results from Collins=s 2008

MRI and compared those results to a prior MRI done in December

of 2006. Drs. Hanna and Valovski found that the 2008 MRI results showed L5 nerve-root impingement which they stated was

consistent with Collins=s symptoms, which had not changed since

2008.

1 The listing of impairments is provided at 20 C.F.R. Part 404, Subpart P, Appendix 1. Section 1.00 pertains to the musculoskeletal system.

8 Collins applied for social security benefits on June 13,

2012, alleging disability since December 20, 2011. The social

security field officer noted that Collins shifted positions

while sitting during the interview and had to turn his right ear

to listen. Collins=s wife completed a Third Party Function

Report on July 10, 2012, in which she said that Collins was

often in pain, could walk a bit before needing to rest, could

stand for only minutes, could mow the lawn with breaks, and

fish. She also said that Collins took care of their children

while she worked but could not play with them in the way that he

did before he was disabled. She said that Collins was able to

pay attention, to finish projects, to follow instructions, and

to get along with authority figures.

In his own function report, Collins listed daily activities

of stretching, sitting and standing, and doing little things

around the house. He reported difficulty in getting dressed,

standing in the shower, and playing with his children. He also

reported having trouble concentrating and getting along with others but said that he had no problem following directions and

dealing with authority. He said that he could lift ten pounds,

could walk thirty yards before needing to rest, could stand for

twenty minutes, and could sit for thirty minutes.

A hearing before an ALJ was held on June 19, 2013. Collins

testified at the hearing to similar limitations in his

activities and abilities as provided in his function report. A

9 vocational expert also testified. The ALJ issued a decision on

July 22, 2013, denying Collins=s application, and the Appeals

Council denied his request for review.

Discussion

Collins disputes the ALJ=s findings at Steps Two and Three,

arguing that the ALJ erred in failing to find that his PTSD was

a severe impairment and that the ALJ=s analysis of his back

condition at Step Three was incomplete and erroneous. The

Acting Commissioner moves to affirm the decision.

A. Mental Impairment

Collins contends that the ALJ erred in not finding a severe

impairment at Step Two due to PTSD. He acknowledges that an

omission of a severe impairment at Step Two is not a reversible

error as long as the sequential analysis continues and properly

considers the claimant=s impairments. He argues that the ALJ

erred at Step Four by failing to include limitations based on

Collins=s PTSD. The Acting Secretary asserts that the ALJ properly assessed Collins=s severe impairments and appropriately

found that Collins=s PTSD did not limit his ability to work.

1. Step Two

At Step Two, the claimant must show that he has at least

one impairment or a combination of impairments that is

sufficiently severe Aas to be the basis of a finding of inability

to engage in any [substantial gainful activity].@ Titles II &

10 XVI: Medical Impairments That Are Not Severe, SSR 85-28,

, at *3. A[T]he Step Two severity requirement is . . . a

de minimis policy, designed to do no more than screen out

groundless claims.@ McDonald v. Sec=y of Health & Human Servs.,

(1st Cir. 1986). When an ALJ erroneously

omits a severe impairment at Step Two, the error does not

require reversal as long as the ALJ did find other severe

impairments and continued through the sequential analysis. See

Bica v. Astrue,

, at *9 (D.N.H. Nov. 17, 2011).

In the Step Two analysis, the ALJ considered the record

evidence pertaining to Collins=s claim of disability based on

PTSD. The ALJ noted that Collins reported only occasional

symptoms due to PTSD and had not considered himself to be

disabled by PTSD. The ALJ also relied on the opinions provided

by Dr. Read and Dr. Kalfas that Collins had no functional

limitations due to PTSD.

Collins contends that the ALJ Acherry picked@ information

from his medical records, failed to credit the parts of the mental health disability evaluation by the VA that support his

claim, and misread Dr. Read=s opinion. Collins contends that

evidence in the record supports his claim of disability due to

PTSD.

Dr. Read and Dr. Kalfas both found that Collins did not

have significant limitations caused by PTSD. Contrary to

Collins=s interpretation, Dr. Read did not limit Collins to

11 simple decision making but simply answered the question asked on

the form.2 As the Acting Commissioner explains, the ALJ relied

on substantial evidence in the record to conclude that Collins=s

anxiety and PTSD were not severe impairments.

In any case, the ALJ found severe impairments due to

Collins=s physical limitations and continued the analysis.

2. Residual Functional Capacity

Collins also argues, briefly, that the ALJ erred in failing

to include limitations due to impairments caused by PTSD in the

residual functional capacity assessment. A residual functional

capacity assessment determines the most an applicant for

benefits can do despite his limitations. 20 C.F.R. '

404.1545(a). The Acting Commissioner=s residual functional

capacity assessment, as found by the ALJ, is reviewed to

determine whether it is supported by substantial evidence.

Irlanda Ortiz v. Sec=y of Health & Human Servs.,

,

2 The form asked about Collins=s current level of functioning with respect to categories. To evaluate Collins=s functioning as to AReaction to Stress, Adaptation to Work or Work-like Situations,@ the form directed Dr. Read to Adescribe the claimant=s ability to tolerate stresses common in the work setting, specifically the ability to make simple decisions, to maintain attendance and a schedule, and to interact appropriately with supervisors, etc.@ Dr. Read answered: AIn my professional opinion, John is able to make simple decisions, able to interact appropriately with supervisors, able to tolerate stresses common in a work setting and able to maintain a schedule, aside from his medical issues/physical pain.@

12 769 (1st Cir. 1991); Pacensa v. Astrue,

(D. Mass. 2012).

The ALJ found that Collins retained the residual functional

capacity to do light work without any limitations caused by

mental-health issues. The ALJ found that Collins=s PTSD did not

cause severe impairments based on the opinions of Dr. Read and

Dr. Kalfas that Collins did not have significant functional

limitations caused by anxiety and PTSD. Although Collins points

to evidence in the record to support his view that PTSD did

cause severe impairments, substantial evidence supports the ALJ=s

finding, which satisfies the standard of review. ' 405(g);

Nguyen,

.

B. Step Three

At Step Three of the sequential analysis, the ALJ must

determine whether the applicant has an impairment or a

combination of impairments that meets or medically equals the

severity of an impairment listed at 20 C.F.R. Part 404, Subpart P. See Pfeffer v. Colvin,

, at *3 (D. Mass. Mar.

18, 2014). To meet a listed impairment, the applicant must

demonstrate that he satisfies all of the criteria for that

listing. 20 C.F.R. ' 404.1525; Sullivan v. Zebley,

(1990) (AFor a claimant to show that his impairment matches a

listing, it must meet all of the specified medical criteria. An

impairment that manifests only some of those criteria, no matter

how severely, does not qualify.@). When an applicant has

13 impairments that are not listed, he may still be found disabled

at Step Three if he can show that his impairments are at least

equal in severity and duration to an analogous listing. 20

C.F.R. ' 404.1526.

The ALJ found that Collins=s degenerative disc disease did

not meet or equal Listing ' 1.04, Disorders of the Spine, because

of the lack of evidence of nerve-root or spinal-cord compromise.

In making that finding, the ALJ noted that the most recent

testing, x-rays taken on August 9, 2012, showed only mild

degenerative disc disease. Collins argues that the ALJ erred

because the interpretation of his 2008 MRI done at the Boston

VAMC on January 10, 2013, was that he had L5 nerve-root

impingement. He contends that the 2008 MRI is better evidence

than the more recent x-ray and that the ALJ=s failure to mention

the MRI means that he did not consider that evidence.

Collins argues that the same ALJ made the same mistake in

this case that he made in Crandlemere v. Astrue,

,

(D.N.H. Jan. 15, 2013). In Crandlemere, the claimant asserted that his impairment met the listing at ' 1.04,

but the ALJ found in a cursory statement that there was no

medical evidence of nerve-root compression, or the other

requirements for ' 1.04. The court noted, however, that an MRI

showed disc herniation with nerve-root impingement at L5 and S1,

that post operative MRI results also showed scar tissue and disc

bulge at L5 and S1, and that more recent tests showed the

14 claimant had positive results on straight-leg testing. The

court concluded that the ALJ=s failure to reference the MRI

results and straight-leg tests left the court unable to

determine whether the ALJ considered that evidence.

In this case, however, the ALJ referenced medical evidence

that was contrary to the requirements for ' 1.04. In addition,

for purposes of determining Collins=s residual functional

capacity, the ALJ noted that Collins was employed full time,

above the substantial gainful activity level, doing construction

work from October of 2005 until December of 2011 when he was

laid off. The ALJ noted that Collins did not stop working

because of limitations caused by back pain. In addition, the

ALJ adopted the assessment done by Dr. Jaffe based on Collins=s

medical records through November 7, 2012, which included the

2008 MRI. Dr. Jaffe found that Collins was able to do a full

range of light work.

The Acting Commissioner argues that even if the recent

interpretation of Collins=s 2008 MRI were credited to show nerve- root compromise, Collins has not shown that he met or equaled

' 1.04A, ' 1.04B, or ' 1.04C, which would be required to show

disability at Step Three. The Acting Commissioner notes that

Dr. Jaffe found that Collins had degenerative disc disease but

not at a listing level.

Dr. Jaffe=s opinion provides substantial evidence to support

the ALJ=s finding at Step Three, despite the ALJ=s cursory

15 analysis. Although the medical evidence might have been

interpreted differently, the ALJ=s findings must be affirmed when

supported by substantial evidence.

Conclusion

For the reasons detailed above, the Acting Commissioner=s

motion for an order affirming her decision, document no. 11, is

granted, and Collins=s motion to reverse and remand the decision,

document no. 10, is denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Landy McCafferty United States District Judge

June 24, 2014

cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.

16