Huse v. SSA CV-13-117-JL 3/20/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Michael David Huse, Jr.

v. Crvrl No. 13-CV-117-JL Opinion No.

Carolyn W. Colvin, Commissioner, Social Security Administration

ORDER ON APPEAL

Michael David Huse, Jr. has appealed the Social Security

Administration's denial of his application for Disability

Insurance Benefits ("DIB") for the period extending beyond July

3, 2008. An administrative law judge at the SSA ("ALJ") ruled

that Huse's severe impairments (degenerative disc disease of the

lumbar spine, depressive disorder, and anxiety disorder with

panic attacks) left him unable to perform any full-time work on a

regular and continuing basis between April 1, 2005 and July 3,

2008, entitling him to benefits for that closed period. But the

ALJ also ruled that Huse thereafter experienced an improvement in

his medical condition that was related to his ability to work,

because it resulted in an increase to his residual functional

capacity ("RFC"). See

(b)(1), (b)(3).

Specifically, the ALJ found that, as of July 4, 2009, Huse could

do sedentary work with just a few limitations, enabling him to

perform jobs existing in significant numbers in the national economy--with the result that, as of July 4, 2008, he was no

longer disabled. See i d . § 404.1594(f)(9).

The Appeals Council later "found no reason under [its] rules

to assume jurisdiction" over Huse's appeal from the ALJ's

decision, see i d . § 404.968(a), with the result that it became

the SSA's final decision on Huse's application, see i d .

§ 404.981. Huse appealed the decision to this court, which has

jurisdiction under

(g) (Social Security).

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

9.1(b)(1), arguing, among other things, that the ALJ lacked

substantial evidence to support his ruling that Huse had

experienced a medical improvement related to his ability to work.

"Medical improvement is related to [a claimant's] ability to work

if there has been a decrease in the severity . . . of the

impairment present at the time of the most recent favorable

medical decision and an increase in [the claimant's] functional

capacity,"

(b)(3), which measures the

claimant's ability to engage in substantial gainful activity,

§ 404.1594(b) (5) . "Even where medical improvement related to

[the claimant's] ability to work has occurred . . . , [the

Commissioner] must also show that [the claimant is] currently

able to engage in substantial gainful activity before [the

Commissioner] can find [the claimant] is no longer disabled."

2 I d . § 404.1594(a). The result of this framework, as Huse points

out, is that "[u]nder the medical improvement standard, the

government must, in all respects, prove that the person is no

longer disabled." Waters v. Barnhart,

(5th

C i r . 2 0 02) .1

In concluding that Huse was no longer disabled because, as

of July 4, 2008, he had experienced a medical improvement related

to his ability to work, the ALJ gave substantial weight to the

opinions of Dr. Charles Header, a physician who (without

examining Huse) completed a physical RFC assessment on August 21,

2008. In relevant part. Header found that Huse could sit for

about six hours out of eight in a workday and that, even

accounting for his pain, weakness, and deconditioning, Huse could

1Some courts have held that the "medical improvement" standard applies only where there has been "a previous decision in favor of disability, followed by the claimant's receipt of benefits, further followed by a new proceeding resulting in cessation or termination on the ground of medical improvement," as opposed to a case like this one, where the SSA awards a closed period of disability. Camp v. Heckler,

(8th Cir. 1986). But our Court of Appeals has not considered the question and, as Waters recognized, several courts of appeals have come to the contrary conclusion, holding that the medical improvement standard applies to awards of closed periods of disability.

-19 (citing and adopting cases) . In any event, the ALJ here applied the medical improvement standard, and the Commissioner, in her motion, argues that the ALJ was correct to do so. Accordingly, this court will review the ALJ's application of the medical improvement standard, despite the unsettled question of whether that standard even applies to a decision awarding a closed period of disability.

3 attend at least six hours out of eight in a workday. Based

expressly on this assessment, the ALJ found that, as of July 4,

2008, Huse had the RFC to perform sedentary work, see

(a), albeit subject to certain non-exertional

limitations (no more than simple tasks, no interaction with the

general public, and only limited interaction with co-workers).

The problem with this reasoning, as Huse points out, is that

RFC is the individual's maximum remaining ability to do sustained work activities on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.

SSR 96-8p, Titles II and XVI: Assessing Residual Functional

Capacity in Initial Claims,

, at *2 (S.S.A. July 2,

1996) (emphasis and footnote omitted). Here, as just noted,

Header opined only that Huse could attend at least six hours out

of eight in a workday--not at least eight hours a day, or an

equivalent work schedule. Header's opinion, then, does not

support the ALJ's finding that, as of July 4, 2008, Huse had the

RFC necessary to perform sedentary work. Indeed, "[u]nder the

applicable guidelines, an individual who is unable to work a

40-hour workweek is considered disabled." Hitchell v. Astrue,

(citing SSR 96-8p,

, at *2 )

(Barbadoro, J.); see also Dubois v. Astrue,

(Laplante, J.).

4 In defending the ALJ's decision, the Commissioner does not

identify anything else in the record to support the finding that,

as of July 4, 2008, Huse was capable of full-time sedentary work.

Instead, the Commissioner argues that the ALJ "reasonably found"

that Header's opinion that Huse "could 'attend at least 6 hours

out of an 8 hour workday'" was "consistent with a finding that

[he] had the ability to sustain full-time sedentary work for

eight hours per day, five days per week, or an equivalent work

schedule." But whether Header's opinion can be construed as

"consistent with" the ALJ's RFC finding is not the issue. The

issue is whether Header's opinion amounts to substantial evidence

supporting the ALJ's RFC finding--because, again, the burden was

on the Commissioner, not Huse, to show that, by July 4, 2008, he

had recovered the RFC to perform substantial gainful activity.

See

(a). Header's opinion that Huse could

attend at least 6 hours out of 8 in a workday could not have

satisfied that burden, because, again, a claimant lacks the RFC

to do work at any exertional level unless he or she can work at

least 8 hours a day for 5 days a week or the equivalent. See SSR

96-8p,

, at * 2 . The record is simply bereft of

medical evidence that--as of July 4, 2009 or any subsequent

point--Huse had the ability to do so.

5 So the ALJ's decision must be vacated insofar as he found

that, as of July 4, 2008, Huse had the ability to do sedentary

work with specified non-exertional limitations.2 Accordingly,

Huse's motion to reverse the ALJ's decision (document no. 8) is

GRANTED, and the Commissioner's motion to affirm the ALJ's

decision (document no. 11) is DENIED. The case is remanded for

further consideration of Huse's RFC after July 3, 2009 in light

of this order. See

(g). The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. naprante United States District Judge

Dated: March 20, 2014

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

2Huse challenges that finding on other grounds, including that the ALJ erroneously gave Meader's opinions more weight than those of a physical therapist who had examined Huse, and found Huse's claims of disabling symptoms less than fully credible. Because, regardless of the weight they (or Huse's claims) could have properly been given. Header's opinions failed to show that Huse regained the RFC for sedentary work as of July 4, 2009, the court need not consider Huse's additional arguments.

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