UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Roland Gilbert

v. Civil No. 14-cv-553-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Robert Gilbert moves to

reverse the Acting Commissioner’s decision to deny his

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. The

Acting Commissioner, in turn, moves for an order affirming her

decision. For the reasons that follow, the matter is remanded

to the Acting Commissioner for further proceedings consistent

with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (quoting Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting 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 [Acting

2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (citations omitted).

Moreover, the court “must uphold the [Acting Commissioner’s]

conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence.” Tsarelka v. Sec’y of HHS,

(1st

Cir. 1988). Finally, when determining whether a decision of the

Acting Commissioner is supported by substantial evidence, the

court must “review[] the evidence in the record as a whole.”

Irlanda Ortiz,

(quoting Rodriguez v. Sec’y of

HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts, document no. 9. That statement is part of the court’s

record and will be summarized here, rather than repeated in

full.

Gilbert claims that he became disabled on January 25, 2006.1

He reports that in August of 2005, he injured his back while

lifting a manhole cover at work.2 For the purposes of

1 In his decision, the ALJ stated that Gilbert was “alleging disability since October 1, 2004.” Administrative Transcript 15. But, at his hearing, Gilbert indicated that he wanted to amend the onset date to January 25, 2006. Id. at 36.

2 He settled a workers’ compensation claim in 2007 or 2008.

3 eligibility for disability insurance benefits, Gilbert was last

insured on March 31, 2008. At the time of the incident with the

manhole cover, Gilbert was working as a construction laborer, a

job that is classified by the Dictionary of Occupational Titles

at the “heavy” exertional level. His relevant occupational

history also includes employment: (1) in shipping and receiving,

and as a door builder, both classified as “medium” work; (2) as

a sink maker, classified as “very heavy” work; and (3) as a

painting supervisor, which was “light” work, as he performed it.

In October of 2005, Gilbert was diagnosed with a severe

disc injury with disc deteriorations. That diagnosis was based

on a radiological examination of his lumbar spine showing

“severe degenerative changes at L5-S1 with complete disc

collapse in the end plate with degenerative changes as well.”

Administrative Transcript (hereinafter “Tr.”) 388.

In September of 2005, Gilbert saw Dr. David Ouyang for an

annual physical examination and complaints of low back pain.

Gilbert saw Dr. Ouyang once more in September of 2005, twice in

November of 2005 and again on January 9, 2006. On that date,

Dr. Ouyang completed a New Hampshire Workers’ Compensation

Medical Form in which he opined that Gilbert could return to

full-time work with modifications. Those modifications were

reflected in Dr. Ouyang’s findings that Gilbert could: (1)

4 perform fine motor skills without restriction; (2) frequently

drive; (3) occasionally kneel, squat, stand, walk, sit, and

reach; and (4) not bend or climb. Dr. Ouyang also stated that

Gilbert could only lift/carry five to ten pounds, but could do

so frequently.

Gilbert continued to treat with Dr. Ouyang from January 25

2006, through June 4, 2007, and saw him pretty much monthly

during that period. At each visit, Dr. Ouyang performed a

physical examination. Moreover, between January 25, 2006, and

March 22, 2007, Dr. Ouyang completed 16 more workers’

compensation medical forms in which he indicated that Gilbert

could not return to work.

In a letter dated April 10, 2006, Dr. Ouyang had this to

say:

Please be informed that ROBERT R GILBERT is under my care for medical treatment and has been seen by an Orthopedic Spine Specialist – he has been found to have surgical disease in his back and is pending surgery. I do believe this is a result of work injury and I strongly believe [Gilbert] deserves worker’s compensation.

Tr. 352. In a letter dated September 1, 2006, addressed to whom

it may concern, Dr. Ouyang wrote:

ROBERT R GILBERT is under my care for chronic low back pain requiring surgical Rx s/p Orthopedic Spine surgery recommendation, utilizing Titanium Disc. [Gilbert] cannot work until surgery [is] completed due to severe low back pain and surgical disease.

5 Tr. 744. Dr. Ouyang expressed a similar opinion in a letter

dated January 19, 2007:

Please be informed that ROBERT R GILBERT is under my care for medical treatment and has undergone evaluation by an Orthopedic Spine Surgeon, who feels Robert needs a Titanium Disc Replacement as one of his Lumber Discs has completely eroded. He is unable to work due to his medical condition at this time until surgery is performed.

Tr. 739. Gilbert had disc fusion surgery at some point in late

2011 or early 2012.

In addition to the letters authored by Dr. Ouyang, the

record also includes a letter from Dr. David Publow,

communicating the results of an independent medical examination

he performed at the request of a workers’ compensation carrier.

In that letter, dated May 1, 2006, Dr. Publow devoted

considerable attention to the question of distinguishing the

effects of Gilbert’s pre-existing condition from the effects of

the 2005 incident with the manhole cover. He also offered the

following relevant opinions:

He [Gilbert] does appear to have a full-time work capacity at this time, but reasonably should avoid prolonged bending, stooping or heavy lifting because of his underling degenerative disc disease. . . . The amount of degeneration is significant enough that Mr. Gilbert probably should not be employed in the future as a laborer or in other activities that require prolonged bending, stooping or heavy lifting.

Tr. 750.

6 In June of 2010, Gilbert applied for Social Security

disability insurance benefits. After a hearing before an ALJ,

Gilbert’s claim was denied. Among other things, the ALJ

determined that Gilbert retained the residual functional

capacity (“RFC”)3 to perform the full range of light work.4 The

Appeals Council remanded. The remand order included the

following discussion:

The Administrative Law Judge did not adequately consider the opinions of David Ouyang, M.D., a treating source. The Administrative Law Judge considered Dr. Ouyang’s April 10, 2006 and September 1, 2006 letters and found these letters only expressed an opinion regarding the claimant’s ability to perform his past relevant work, and the Administrative Law Judge therefore found no conflict between these opinions and the findings in the decision . . . . However, the September 1, 2006 letter does not explicitly discuss the claimant’s ability to perform only his past relevant work, rather it more generally states that the claimant is unable to work until surgery is completed.

Furthermore, elsewhere, Dr. Ouyang provided a more specific opinion about the claimant’s functioning, which was not considered by the Administrative Law Judge. On January 9, 2006, Dr. Ouyang indicated the claimant could return to work, but only with modifications accommodating an ability to only occasionally stand, walk, or sit, among other things. In a number of subsequent opinions, Dr. Ouyang revised his opinion and suggested the claimant could not

3 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1).

4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighting up to 10 pounds.”

(b).

7 return to work, but Dr. Ouyang did later reaffirm these prior restrictions. The Administrative Law Judge should further consider the opinions of Dr. Ouyang and provide additional rationale for the weight given to the opinions.

Tr. 149-50 (citations to the record omitted). The remand order

concluded by directing the ALJ to:

• Give further consideration to the treating source opinions pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. . . .

• If warranted, give further consideration to the claimant’s maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and Social Security Ruling 96-8p).

Tr. 150.

After conducting a hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

3. Through the date last insured, the claimant had the following severe impairment: degenerative disc disease (20 CFR 404.1520(c)).

. . . .

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404. 1526).

. . . .

8 5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can bend[] and stoop only occasionally. He cannot perform any prolonged bending. Due to pain, the claimant could not perform supervisory responsibilities and could perform only unskilled work. He could tolerate only brief interaction with the public.

. . . .

6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404. 1565).

. . . .

10. Through the date last insured, considering the claimant’s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

Tr. 17, 18, 21. Based upon his assessment of Gilbert’s residual

functional capacity, and a hypothetical question posed to a

vocational expert that incorporated the RFC recited above, the

ALJ determined that Gilbert was able to perform the jobs of

document preparer, price marker, and cleaner.

In addition to revising the RFC assessment from his first

decision, the ALJ gave the following explanation of the weight

he gave Dr. Ouyang’s opinions:

As for the opinion evidence, I note the opinions of treating physician David T. Ouyang, M.D., who wrote general letters throughout the period stating that the claimant was unable to work and was eligible for

9 worker’s compensation. Yet, his opinions appear to be focused upon the claimant’s inability to perform his past relevant work, which was all at the medium or greater exertional level. Further, these opinions fail to provide any function by function analysis of the claimant’s remaining abilities or limitations, and are thus mere determinations of disability that add little to our analysis here. Such determinations are also reserved to the Commissioner. Finally, Dr. Ouyang’s evaluations regarding total disability are in contrast to his medical notes, which consistently indicate a normal gait, symmetrical reflexes, negative strait leg raise testing, and normal motor and sensory functioning. Such consistently normal findings fail to support the finding of total disability and are more consistent with the opinion of Dr. David [P]ublow, M.D., who performed an independent medical examination in May of 2006. Based on the evaluation, he opined that the claimant had a full-time work capacity, but that he should avoid prolonged bending, stooping, and heavy lifting. As such, the opinions of Dr. [P]ublow are given more weight than those of Dr. Ouyang, as his opinions are consistent with his exam findings and also with the objective findings made by Dr. Ouyang at other times during the period. As such, a capacity for a range of light exertion work has been reflected in the residual functional capacity above.

Tr. 20-21 (citations to the record omitted). While the ALJ

discussed the opinions in Dr. Ouyang’s letters, he said nothing

about the January 9, 2006, workers’ compensation medical form in

which Dr. Ouyang provided a function by function analysis of

Gilbert’s abilities and limitations.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

10 retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). The only question

in this case is whether Gilbert was under a disability at any

time from January 25, 2006, through March 31, 2008, the last

date he was eligible for Social Security disability insurance

benefits.

For the purpose of determining eligibility for disability

insurance benefits,

[t]he term “disability” means . . . inability 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). Moreover,

[a]n individual shall be determined to be under a disability 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. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

(d)(2)(A).

11 To decide whether a claimant is disabled for the purpose of

determining eligibility for disability insurance benefits, an

ALJ is required to employ a five-step process. See

.

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

) (D. Mass. 1982)). However,

[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho

12 v. Sec’y of Health & Human Servs.,

(1st Cir. 1982).

Seavey,

(parallel citations omitted). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Gilbert’s Claims

Gilbert claims that his case should be remanded because the

ALJ failed to: (1) give proper weight to Dr. Ouyang’s opinions;

and (2) properly evaluate Gilbert’s credibility. Gilbert’s

first argument is persuasive and dispositive.

The Appeals Council expressly directed the ALJ to give

further consideration to Dr. Ouyang’s opinions, and the remand

order discussed the January 9, 2006, workers’ compensation

medical form in which Dr. Ouyang opined that Gilbert could lift

and/or carry no more than five to ten pounds. The ALJ did not

mention that opinion in his second decision, and gave no reason

for not doing so. That opinion is especially important because

it is the only opinion that specifically addresses Gilbert’s

13 exertional capacity, and according to that opinion, Gilbert

lacked the capacity for light work, which the ALJ said he could

perform. See

(b) (“[l]ight work involves

lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pound”). To be sure,

Dr. Publow opined that Gilbert was not capable of “heavy

lifting,” but he offered no opinion on just how much Gilbert

could lift, and there is no reason to believe that there is any

correspondence between Dr. Publow’s reference to “heavy lifting”

and the categories used in

and the

Dictionary of Occupational Titles.

Gilbert rightly makes much of the ALJ’s failure to address

Dr. Ouyang’s opinion on his limited capacity for lifting. The

Acting Commissioner responds by arguing that the ALJ had no

obligation to weigh that opinion, or explain the conflict

between that opinion and his RFC assessment, because that

opinion covered only a 14-day period, rather than giving a

longitudinal assessment of Gilbert’s functioning. Even if that

argument had some persuasive value, it is not for the Acting

Commissioner to make arguments in support of the ALJ’s decision

that the ALJ did not make.5 See Gurney v. Soc. Sec. Admin.

5 The Acting Commissioner’s argument seems suspect for several reasons. To the extent that the January 9, 2006, opinion covers only 14 days, that is so because it was part of a

14 Comm’r,

(D. Me. 2012) (citing SEC v.

Chenery Corp.,

(1947)); Fortin v. Astrue, No.

10-cv-441-JL,

, at *8 (D.N.H. May 18, 2011),

report and recommendation adopted by

(D.N.H.

June 7, 2011).

While the ALJ’s failure to address Dr. Ouyang’s January 9,

2006, opinion is reason enough to remand this case, the court

notes two other problems with the ALJ’s decision. First, while

the ALJ found that Gilbert was capable of light work, there is

no evidence from a medical expert to support that finding. See

Jabre v. Astrue, No. 11-cv-332-JL,

, at *8

(D.N.H. Apr. 5, 2012), report and recommendation adopted by

(D.N.H. Apr. 9, 2012) (“when assessing a claimant’s

RFC, ‘[t]he general rule is that an expert is needed to assess

the extent of functional loss”) (quoting Roberts v. Barnhart,

, 622–23 (1st Cir. 2003); citing Manso–Pizarro,

). That is, no medical expert has opined that Gilbert

had the RFC to lift any more than 10 pounds, and light work

requires the capacity to lift up to 20 pounds.

series opinion expressed in more than a dozen more workers’ compensation medical forms that the ALJ seems not to have considered, either. Moreover, it is difficult to see how Dr. Publow’s single opinion could be considered superior to Dr. Ouyang’s opinions on longitudinal grounds, given that Dr. Ouyang treated Gilbert, and provided opinions on his ability to work, for nearly a full year after Dr. Publow rendered his opinion.

15 Beyond that, the ALJ’s observation that the opinions from

Dr. Ouyang that he did consider “appear[ed] to be focused upon

[Gilbert]’s inability to perform his past relevant work,” Tr.

20, is not well taken. The Appeals Council expressly noted that

“the September 1, 2006 letter does not explicitly discuss the

claimant’s ability to perform only his past relevant work,” Tr.

149, and the ALJ’s second decision provides no alternative

construction of that letter. Moreover, the ALJ’s theory is

substantially undercut by the January 9 opinion; if Dr. Ouyhang

had been focusing only upon Gilbert’s ability to perform his

past relevant work, he would not have found that Gilbert was

able to return to work while also finding that he had a capacity

to lift no more than ten pounds, which is an exertional capacity

that falls below the levels required for any of Gilbert’s past

relevant work.

In sum, this case must be remanded for a proper

consideration of Dr. Ouyang’s January 9, 2006, opinion, as well

as the opinions expressed in the workers’ compensation forms

that Dr. Ouyang completed thereafter.

IV. Conclusion

For the reasons given, the Acting Commissioner’s motion for

an order affirming her decision, document no. 8, is denied, and

Gilbert’s motion to reverse the decision of the Acting

16 Commissioner, document no. 7, is granted to the extent that the

case is remanded to the Acting Commissioner for further

proceedings, pursuant to sentence four of

(g).

The clerk of the court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 16, 2015

cc: Daniel McKenna, Esq. Terry L. Ollila, Esq.

17