UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Fisher

v. Civil No. 16-cv-176-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Mark Fisher seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the

Social Security Administration, denying his application for

supplemental security income. In support, Fisher contends that

the Administrative Law Judge (“ALJ”) erred in finding that he

was not disabled because substantial evidence supports the

issues he raises and that the Acting Commissioner failed to meet

her burden of showing that jobs exist that he could do. The

Acting Commissioner moves to affirm the decision.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “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); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial 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).

As a preliminary matter, Fisher, who is represented by

counsel, misunderstands the standard of review. In support of

his motion to reverse the Acting Commissioner’s decision, he

argues that substantial evidence supports the issues he raises

and contends that the ALJ’s findings were, therefore, erroneous.

Even if substantial evidence supports Fisher’s claims of error,

the court will affirm the Acting Commissioner’s decision as long

as substantial evidence in the record also supports the ALJ’s

findings. See, e.g., Nguyen,

(“The ALJ’s

findings of fact are conclusive when supported by substantial

evidence . . . .”); Misterka v. Colvin,

, at *6-

*7 (D. Mass. Sept. 22, 2016) (As long as substantial evidence

supports the ALJ’s finding, “it is not for this court to re-

weigh the evidence.” [internal quotation marks omitted]).

2 Despite counsel’s mistake, the court will review Fisher’s

claims under the applicable standard of review.

Background

Fisher applied for supplemental security income under Title

XVI on July 8, 2013, alleging disability due to a variety of

impairments, including cirrhosis of the liver. He was forty-

eight years old when he applied. He had completed the ninth

grade and had worked as a janitor, a machine operator, and a

security guard.

Fisher was diagnosed with non-alcoholic steatohepatitis

(“NASH”) in 2013 that progressed to cirrhosis of the liver. He

was hospitalized from June 29 to July 1, 2013, based on his

family’s report that he was confused and talking nonsense. On

intake, the assessment noted was “delirium prob.

Metabolic/hepatic encephalopathy with hyperammonemia -- ? NASH

vs. Etoh liver ds—His LFT patters w liver ds, but pt. And wife

denies any use of etoh for few years.” The urine test in the

emergency room was negative for alcohol. Fisher’s mental status

screening and neurological examinations at the hospital were

normal. On discharge, he was diagnosed with hepatic

encephalopathy.

Fisher was hospitalized in September of 2013 for

gastrointestinal bleeding. His neurological and psychiatric

3 examinations were normal. Lactulose, a medication to treat

advanced liver disease, was added to Fisher’s medication

regimen.

Dr. Johnathan Jaffe, a state medical consultant, reviewed

Fisher’s medical records and issued a report on September 30,

2013. Dr. Jaffe concluded that Fisher could do light work but

would need to avoid concentrated exposure to hazards such as

machinery.

From October 6 to October 8, 2013, Fisher was again

hospitalized because of hepatic encephalopathy. Fisher’s wife

reported that Fisher had had several episodes of confusion along

with dizziness and had acted as though he were drunk. Fisher’s

urine screen was negative for alcohol. On admission, he was

diagnosed with altered mental status that was suspected to be

caused by acute hepatic encephalopathy which was likely because

of inadequate lactulose. His dose of lactulose was increased,

and he improved. At a follow up appointment with Dr. Knight,

Fisher reported being tired but denied any neurological or

psychiatric problems.

Fisher was hospitalized again for hepatic encephalopathy

from November 17 to November 18, 2013. His wife reported that

he had been more spaced out and had had staring episodes, and

4 Fisher said that he had been feeling loopy. His psychiatric and

neurological examinations were normal. At his follow up

appointment, Fisher’s treating physician, Dr. Eric Knight,

reported that Fisher had acute hepatic encephalopathy due to

liver cirrhosis secondary to NASH. Fisher said he was back to

normal except for being tired.

Other medical records note liver cirrhosis secondary to

NASH, diabetes, carpal tunnel syndrome, along with other medical

issues.

A hearing before an ALJ was held on December 18, 2014.

Fisher testified about his background and the effects of his

illness and other issues. A vocational expert testified about

jobs that could be done based on the ALJ’s hypothetical

descriptions of limitations. The ALJ issued his decision on

January 23, 2015.

The ALJ found that Fisher retained the ability to do work

at the light exertional level with only occasional postural

activities and avoiding ladders, ropes, scaffolds, and hazards.

Based on that residual functional capacity assessment, the ALJ

found that Fisher could work as a price marker, a laundry

classifier/sorter, and a bench assembler. For that reason, the

ALJ found that Fisher was not disabled.

5 Fisher filed an appeal with the Appeals Council and

submitted an opinion from Dr. Knight. The Appeals Council

denied review, making the ALJ’s decision the final decision of

the Acting Commissioner.

Discussion

Fisher contends that the ALJ erred in finding that his

impairments do not meet or equal the requirements of the listed

impairment at § 5.05(F)1, erred in failing to give controlling

weight to the opinions of his treating physician, and erred at

step four in finding that he had a residual functional capacity

to work at the light exertional level. Fisher also contends

that the Acting Commissioner failed to meet her burden at step

five of showing that jobs exist that he could do. The Acting

Commissioner moves to affirm, arguing that the decision is

supported by substantial evidence.

In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

. The claimant bears

the burden through the first four steps of proving that her

1 The listings are found at 20 C.F.R. Part 404, Subpart P, Appendix 1.

6 impairments preclude her from working.2 Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the

claimant can do. Heggarty v. Sullivan,

(1st

Cir. 1991).

Although Fisher challenges the Acting Commissioner’s

decision on a variety of grounds, the problems with the step

three finding require remand. Therefore, the other issues need

not be addressed here.

At step three, the ALJ considered § 5.05, which pertains to

chronic liver disease, along with two other listings.3 The ALJ

found that Fisher did not have an impairment or combination of

impairments that met or medically equaled a listing, including

2 The first four steps are (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and his ability to do his past relevant work.

(a).

3 An impairment or combination of impairments meets a listed impairment if they are medically determinable and satisfy all of the criteria of the listing.

. An impairment or combination of impairments medically equals a listed impairment if, an unlisted impairment or a combination of unlisted impairments “is at least equal in severity and duration to the criteria of any listed impairment.”

(a). The claimant bears the burden of showing that his impairment or combination of impairments meets or equals a listed impairment. King v. Colvin,

, at *3 (D.N.H. Aug. 23, 2016).

7 § 5.05. Fisher contends that the ALJ’s finding is wrong because

his impairments met the criteria for § 5.50(F). Fisher also

contends that the ALJ erred at step three because he did not

consider Fisher’s impairment due to bilateral carpal tunnel

syndrome to determine if that impairment medically equaled a

listed impairment.

Chronic liver disease includes hepatic encephalopathy that

results in abnormal behavior, cognitive dysfunction, changes in

mental status, or an altered state of consciousness,

§ 5.05(F)(1), and another condition as described in

§ 5.05(F)(2)or § 5.05(F)(3). The ALJ found that Fisher did not

meet or equal the criteria for § 5.05, without any

particularized analysis of the record in relation to the

criteria for § 5.05(F).

The parties agree that Fisher has chronic liver disease

with hepatic encephalopathy. The Acting Commissioner also

agrees that Fisher satisfies § 5.05(F)(3). The Acting

Commissioner contends, however, that Fisher does not meet the

criteria of § 5.05(F)(1) because the record does not show that

he had “abnormal behavior, cognitive dysfunction, changes in

mental status, or altered state of consciousness (for example,

confusion, delirium, stupor, or coma), present on at least two

8 evaluations at least 60 days apart within a consecutive 6–month

period” as required by § 5.05(F)(1).

Fisher argues that he meets the requirements of

§ 5.05(F)(1) because he was hospitalized three times based on

reports that he was experiencing an altered mental state, which

occurred on June 29 to July 1, 2013 (“June treatment”), October

6 to October 8, 2013 (“October treatment”), and November 17 to

November 18, 2013 (“November treatment”). The Acting

Commissioner contends that those incidents do not meet the

criteria of § 5.05(F)(1) because the June treatment was before

his application date and the October and November treatments are

not sixty days apart and because the medical records do not

include evaluations of an altered mental state.

A. Application Date

The medical events to support chronic liver disease under

§ 5.05 “must occur within the period we are considering in

connection with your application.” § 5.00(B). The Acting

Commissioner argues that the relevant period for purposes of

medical evidence to support a Title XVI case, like Fisher’s,

begins on the date the claimant files his application. Fisher

argues that the relevant period includes the twelve months that

precede the application date.

9 The Acting Commissioner relies on the regulatory

restriction as to when benefits can be paid for a claim under

Title XVI.

& § 416.501; see also Williams

v. Colvin,

, at *1 (W.D.N.Y. Sept. 28, 2016);

Benson v. Colvin,

, at *3 (W.D. Okla. Sept. 7,

2016); Brown v. Colvin,

, at *6 (D.S.C. Aug. 22,

2016). Based on that limitation, the Acting Commissioner argues

that the June treatment cannot be considered because it occurred

before the application date of July 8, 2013.

Fisher argues that the June treatment should be considered

for purposes of § 5.05(F)(1) because the Acting Commissioner is

required to collect medical records for twelve months before the

application date and because the ALJ expressly considered those

records.

(d); see also Halyday v. Colvin,

, at *7 (C.D. Cal. Aug. 30, 2013) (holding that

the Acting Commissioner had “not shown that the plaintiff’s

ineligibility for benefits payments prior to a certain period

necessarily dictates the court’s (or the ALJ’s) ability to

examine medical evidence in the record but predating that

period”).

The ALJ did not provide any analysis of the evidence he

considered for purposes of his step three finding so that it is

unclear whether he considered the June treatment or not. As a

10 result, the ALJ did not address the issue of the relevant period

for determining whether Fisher met the criteria of § 5.05(F).

Given the import of the issue raised, which could affect other

findings at step three, it is appropriate to allow the Social

Security Administration to develop the record at the

administrative level before the issue is reviewed here.

B. Evaluation

The Acting Commissioner also argues that even if the June

treatment evidence were not time barred, the records do not show

that Fisher had the required mental abnormalities “present on at

least two evaluations at least 60 days apart within a

consecutive 6–month period.” § 5.05(F)(1). Specifically, the

Acting Commissioner contends that although Fisher’s family

reported when they brought him to the hospital for the June

treatment that he was exhibiting symptoms of an altered mental

state, the record does not show that he exhibited that condition

when evaluated at the hospital. Instead, Fisher’s examination

was normal.

Fisher argues that his family’s reports document abnormal

behavior, which need not be based on an evaluation. He also

contends that the doctor diagnosed an altered mental status when

he was admitted for the June treatment and that an abnormal

mental screening test is not required.

11 As noted above, the ALJ did not provide any analysis of the

evidence he considered in making his finding at step three.

Consequently, the record does not show if the finding was based

on a lack of an abnormal evaluation. The meaning of

§ 5.05(F)(1) should be addressed in the first instance by the

Social Security Administration in its administrative

proceedings. Once that determination is made, the court can

review the decision, if necessary. As the record and decision

are presented here, there is insufficient information about the

basis of the decision to allow review.

Conclusion

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

(document no. 6) is granted. The Acting Commissioner’s motion

to affirm (document no. 9) is denied.

The case is remanded under Sentence Four for further

administrative proceedings to address the issues raised in this

decision and any other appropriate matters.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

October 18, 2016 cc: Sheila O’Leary Zakre, Esq. Robert J. Rabuck, Esq.

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