UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Kalloch, Claimant

v. Case No. 14-cv-520-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,

James Kalloch, moves to reverse or vacate the Acting

Commissioner’s decision denying his applications for Disability

Insurance Benefits under Title II of the Social Security Act (the

“Act”),

, and Supplemental Security Income

Benefits under Title XVI of the Act,

-1383c.

The Acting Commissioner objects and moves for an order affirming

her decision.

For the reasons discussed below, claimant’s motion is

granted, in part, and the Acting Commissioner’s motion is denied.

The matter is remanded for further proceedings consistent with

this order. Factual Background

I. Procedural History.

In 2009, claimant filed applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”), alleging that he had been unable to work since May 1,

2007, due to chronic illness, which included Lyme disease and,

later, Post-Treatment Lyme Disease Syndrome. That application

was denied and claimant requested a hearing before an

Administrative Law Judge (“ALJ”). Following the first hearing in

this matter, in May of 2011, the ALJ denied claimant’s

applications for benefits. On appeal to this court (Laplante,

C.J.), claimant advanced two arguments. First, he asserted that,

at step two of the sequential analysis, the ALJ erred in failing

to conclude that he suffers from a “severe” mental health

impairment. The court concluded that argument “does not appear

to be meritorious” but declined to address it in any detail. As

to claimant’s second assertion - that the ALJ failed to properly

document her conclusion that claimant’s subjective complaints of

disabling pain were less than fully credible - the court was more

receptive. Specifically, the court concluded that remand was

appropriate, so the ALJ might more fully document her credibility

finding, including claimant’s statements about disabling migraine

pain. Kalloch v. Astrue, 11-cv-522-JL,

(D.N.H.

Sept. 18, 2012) (“Kalloch I”).

2 Accordingly, in April of 2013, claimant, his non-attorney

representative, and a vocational expert again appeared before the

ALJ. But, the ALJ decided she wished to obtain additional

medical evidence, so she sent claimant’s medical records, as well

as a set of interrogatories, to an independent medical expert,

Dr. Charles Plotz. After Dr. Plotz submitted his responses, the

ALJ convened a third hearing, so claimant might have the

opportunity to cross examine the doctor. Subsequently, in a

decision dated April 17, 2014, the ALJ again concluded that

claimant was not disabled, as that term is defined in the Act, at

any time prior to the date of her decision.

Claimant then filed a timely action in this court, asserting

that the ALJ’s decision is not supported by substantial evidence.

Claimant then filed a “Motion for Order Reversing Decision of the

Commissioner” (document no. 13). In response, the Acting

Commissioner filed a “Motion for Order Affirming the Decision of

the Commissioner” (document no. 15). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 20), need not be

3 recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

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

cause for a rehearing.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(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 adequate 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).

4 This court’s review of the ALJ’s decision is, therefore,

both limited and deferential. The court is not empowered to

consider claimant’s application de novo, nor may it undertake an

independent assessment of whether he is disabled under the Act.

Rather, the court’s inquiry is “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). Provided the ALJ’s findings are properly

supported by substantial evidence, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. Such is the nature of judicial

review of disability benefit determinations. See, e.g., Tsarelka

v. Secretary of Health & Human Services,

(1st

Cir. 1988); Rodriguez v. Secretary of Health & Human Services,

(1st Cir. 1981).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB 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

5 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

his impairment prevents him from performing his 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 his previous

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

are other jobs in the national economy that he can perform, in

light of his age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

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);

6 Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). 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). 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 Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ began with the mandatory five-step

sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that claimant had not

been engaged in substantial gainful employment since his alleged

onset of disability: May 1, 2007. Admin. Rec. at 433. Next, she

concluded that claimant suffers from the following medically

determinable impairments: “headaches, anxiety disorder, and

7 depressive disorder.”

Nevertheless, the ALJ concluded that

those impairments, regardless of whether they were considered

alone or in combination, did not significantly limit claimant’s

ability to perform basic work-related activities. Id. at 437.

Accordingly, at step two of the sequential analysis, the ALJ

determined that claimant was not disabled, as that term is used

in the Act.

Discussion

Claimant challenges the ALJ’s decision on several grounds,

but his case rises or falls largely on the following two

questions: first, whether there is substantial evidence in the

record to support that ALJ’s conclusion that claimant failed to

demonstrate that he actually suffers from a medically

determinable impairment - Post-Treatment Lyme Disease Syndrome

(“PTLDS”); and, second, whether substantial evidence supports the

ALJ’s conclusion that claimant’s headaches do not constitute a

“severe impairment” - that is, an impairment that significantly

limits claimant’s physical or mental ability to perform basic

work activities. See

.

I. PTLDS and Medically Determinable Impairments.

As a threshold matter, to be disabled, a claimant must

establish that he or she is unable “to engage in any substantial

8 gainful activity by reason of any medically determinable physical

or mental impairment.”

(i)(1) (emphasis

supplied). See also 42 U.S.C. § 1382c(3)(A) (same). See

generally Thomas,

(“At step two, the SSA will find

nondisability unless the claimant shows that he has a ‘severe

impairment,’ defined as ‘any impairment or combination of

impairments which significantly limits [the claimant’s] physical

or mental ability to do basic work activities.’” (quoting

(c), 416.920(c)). Moreover, as the pertinent

regulations make clear, a claimant’s “impairment must result from

anatomical, physiological, or psychological abnormalities which

can be shown by medically acceptable clinical and laboratory

diagnostic techniques. A physical or mental impairment must be

established by medical evidence consisting of signs, symptoms,

and laboratory findings, not only by [the claimant’s] statement

of symptoms.”

(citing

and 404. 1528) (emphasis supplied). The regulations then describe

the difference between “symptoms,” “signs,” and “laboratory

findings,” as follows:

(a) Symptoms are your own description of your physical or mental impairment. [A claimant’s] statements alone are not enough to establish that there is a physical or mental impairment.

(b) Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from [the claimant’s] statements (symptoms). Signs must be shown by medically acceptable clinical

9 diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception. They must also be shown by observable facts that can be medically described and evaluated.

(c) Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests.

.

Here, to assist her in resolving claimant’s assertion that

he was disabled by reason of PTLDS, the ALJ secured the services

of an independent medical expert, Dr. Charles Plotz. Dr. Plotz

is a board-certified internist, specializing in rheumatology. He

is, among other things, a Fellow in the American College of

Physicians and the author of 175 articles published in peer-

reviewed journals. See Admin. Rec. at 733, Consolidated

Curriculum Vitae. He is also an expert in the diagnosis and

treatment of Lyme disease, who trained with Dr. Stephen Malawista

- the physician credited as being a co-discover of the disease.

After reviewing claimant’s medical record, Dr. Plotz concluded

that claimant “does not have significant rheumatologic disease

10 and I cannot make the diagnosis of ‘chronic Lyme disease.’”

Admin. Rec. at 956.1

The ALJ credited that opinion, noting (among other things)

that none of claimant’s treating physicians had ever diagnosed

him with PTLDS, nor did any document clinical abnormalities or

other signs consistent with PTLDS. Id. at 435. Consequently,

she concluded that, “In the absence of a diagnosis [of PTLDS] and

the absence of medical abnormalities documented by clinical signs

and symptoms, I am constrained by the record to find that the

claimant does not have a medically determinable impairment.” Id.

Claimant asserts that Dr. Plotz’s opinion - that claimant

does not suffer from PTLDS - is inconsistent with the medical

record. But that does not appear to be the case. For example,

in May of 2009, Dr. James Noble (Concord Hospital, Infectious

Disease) concluded that, “It’s fairly clear that [claimant’s]

symptoms are not caused by a tick-borne infectious disease.”

Admin. Rec. at 280. Similarly, in December of 2013, Dr. Durand

(the physician who originally suggested claimant may suffer from

PTLDS, id. at 417) eventually concluded that, “Lyme Disease from

2004 is probably totally cleared, perhaps with residual effect

1 Parenthetically, the court notes that the parties and Dr. Plotz have used the phrases “chronic Lyme disease,” “persistent Lyme disease,” and PTLDS interchangeably. Id. at 453.

11 but I doubt active infection as no response to 18 months

antibiotic [treatment]. Will stop all antibiotics and suggest

psychology/psychiatry follow up at this point the main problem is

anxiety.” Admin. Rec. at 961.

As the regulations make clear, a claimant’s subjective

complaints of symptoms cannot, standing alone, establish that he

or she suffers from a physical or mental impairment. Indeed,

Although the regulations provide that the existence of a medically determinable physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, the regulations further provide that under no circumstances may the existence of an impairment be established on the basis of symptoms alone. Thus, regardless of how many symptoms an individual alleges, or how genuine the individual’s complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.

No symptom or combination of symptoms by itself can constitute a medically determinable impairment. In claims in which there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment, the individual must be found not disabled at step 2 of the sequential evaluation process set out in

and 416.920.

Titles II & XVI: Symptoms, Medically Determinable Physical &

Mental Impairments, & Exertional & Nonexertional Limitations, SSR

96-4P,

at *1-2 (S.S.A. July 2, 1996) (footnote

omitted).

12 Given the evidence of record, the court cannot conclude that

the ALJ erred in determining, at step two, that claimant does not

suffer from PTLDS.

II. Claimant’s Migraine Headaches.

Next, the ALJ concluded that while claimant does suffer from

impairments other than PTLDS, they are not “severe” - that is,

they do not significantly limit his ability to perform basic work

activities. Specifically, she noted that, “The record does show

that [claimant] was diagnosed with depression and anxiety, as

well as with headaches. He received treatment for these

conditions, but the record does not show that he had more than a

mild limitation in activities of daily living, social

functioning, or concentration, persistence and pace.” Admin.

Rec. at 438. Claimant challenges that finding as it relates to

his migraine headaches, noting that they are well-documented in

the record, respond only intermittently (and with varied results)

to medications, and are, at a minimum, sufficient to meet the de

minimus standard imposed at step two of the sequential analysis.

See, e.g. May v. Soc. Sec. Admin. Comm’r,

(1st Cir.

1997) (per curiam) (unpublished table decision) (“Under Social

Security Ruling 85-28, a claim may be denied at step 2 for lack

of a severe impairment only where medical evidence establishes

only a slight abnormality or combination of slight abnormalities

13 which would have no more than a minimal effect on an individual’s

ability to work even if the individual’s age, education or work

experience were specifically considered. Ruling 85-28 clarifies

that the step two severity requirement is intended to do no more

than screen out groundless claims.”) (citations omitted).

Typically, arguments of the sort advanced by claimant can be

resolved fairly easily. Provided the ALJ continues the

sequential analysis and considers those impairments previously

deemed “not severe” later in the analysis, this court has

consistently held that any error at step two was harmless. See,

e.g., Chabot v. U.S. Soc. Sec. Admin., No. 13-CV-126-PB,

, at *9 (D.N.H. May 20, 2014) (collecting cases). Here,

however, because the ALJ concluded that none of claimant’s

impairments was severe, she ended her analysis and concluded that

claimant was not disabled. Consequently, the court must

carefully scrutinize her step two conclusion (which, once again,

brings into consideration her determination that claimant’s

subjective complaints of disabling headache pain were not

entirely credible). See Kalloch I (remanding this proceeding for

a more thorough analysis of claimant’s credibility, particularly

as it relates to claimant’s migraine headaches).

14 In discounting claimant’s subjective complaints about the

intensity, duration, and disabling effect of his migraines, the

ALJ noted that: (1) despite claims that his migraines could last

up to a week, claimant never sought “emergency treatment or

complained of an active headache while at an office visit,”

Admin. Rec. at 439; (2) in May of 2012, during an office visit

with Dr. Durand, claimant reported his “headache stopped a few

weeks ago,” id. at 440; (3) in August of 2012, claimant reported

that although they had returned, his headaches were “not as bad,”

id.; and (4) claimant engaged in activities of daily living,

including periodic efforts to work part-time, that the ALJ

thought were inconsistent with migraines of the severity claimant

asserted. Based upon those observations, the ALJ concluded that

claimant’s headaches were “relatively controlled” and had no more

than “a minimal effect on his ability to perform work-related

activities.” Id.

While the court is hesitant to remand this proceeding for a

second time, it is constrained to agree with claimant’s assertion

that the ALJ’s determination at step two of the sequential

analysis (that claimant’s headaches are not “severe”) cannot be

sustained. As noted above, claimant’s burden at step two is, at

most, modest; the ALJ’s analysis at that step is intended to do

no more than screen out patently groundless claims. And, the

15 record amply supports the conclusion that claimant’s complaints

of (potentially disabling) headaches are not patently groundless.

See generally Kalloch I. First, there is no indication that

claimant is malingering or fabricating symptoms. See, e.g.,

Admin. Rec. at 357, 376-66, 386, 1017. See also Id. at 998

(noting that claimant was frustrated and tearful at times when

describing his efforts to live with chronic illness and his lack

of progress). Relatedly, while there is no diagnostic testing

that might confirm the existence or intensity of claimant’s

migraines, the many treating physicians he has seen over the

years all seem to have credited his reported symptoms, as well as

the intensity of the reported migraines, as truthful and

accurate.

Moreover, despite what appears to have been fairly

aggressive medical treatment (with both non-prescription and

prescription medications), claimant’s migraines (with periodic

photo-sensitivity and vision problems) have remained an issue.

While his symptoms wax and wane, they have never truly resolved

and continue to be an issue. See, e.g., Admin. Rec. at 301, 303,

305, 307-09, 855, 864, 922, 961. See also Id. at 326 (August,

2008, note from Dr. Geffken stating that claimant’s “headaches

are increasing in intensity . . . [and] symptoms are greatly

impacting his life”); 376-77 (May, 2010, note from Dr. Windler

16 stating that claimant “does have what sounds like recurring

migraine headaches occurring about three to five times a month,

which may force him to go to bed anywhere from one hour to three

hours”).

All (including the ALJ) acknowledge that claimant’s

migraines are real. The question is whether they are so minor -

so de minimus - as to have little or no impact on his ability to

perform work-related activities. A substantial volume of

evidence in the record suggests that those migraines are

sufficiently severe to have required the ALJ to continue her

analysis beyond step two, and factor claimant’s migraines into

her determination of a residual functional capacity. Given the

substantial medical evidence showing claimant’s long-term care

for this impairment (which has yet to resolve), it is probably

best to obtain the expert opinion of a medical professional -

either an independent medical examiner or one of claimant’s

treating physicians - to determine the effect, if any, claimant’s

migraines have on his ability to work. See generally Manso-

Pizarro v. Sec'y of Health & Human Servs.,

(1st

Cir. 1996) (“With a few exceptions (not relevant here), an ALJ,

as a lay person, is not qualified to interpret raw data in a

medical record. . . . [W]hen, as now, a claimant has

sufficiently put her functional inability to perform her prior

17 work in issue, the ALJ must measure the claimant’s capabilities,

and to make that measurement, an expert’s RFC evaluation is

ordinarily essential unless the extent of functional loss, and

its effect on job performance, would be apparent even to a lay

person.”) (citations omitted).

Conclusion

This dispute appears to have been distilled down to a single

issue: whether claimant’s migraine headaches are sufficiently

severe to render him disabled. The medical record establishes

that they are at least sufficiently acute that the ALJ should not

have resolved claimant’s applications at step two of the

sequential analysis. Instead, she should have proceeded with

that analysis (perhaps with the assistance of a medical expert)

to determine claimant’s RFC, whether his migraine headaches

prevent him from performing any past relevant work, and, if so,

whether they prevent him from doing any other work in the

national economy.

For the foregoing reasons, claimant’s motion to reverse the

decision of the Acting Commissioner (document no. 13) is granted

to the extent he seeks a remand for further proceedings related

exclusively to the potentially disabling nature of his migraine

18 headaches. The Acting Commissioner’s motion to affirm her

decision (document no. 15) is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated April 17, 2014, is vacated and this

matter is hereby remanded for further proceedings consistent with

this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 24, 2016

cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.

19