UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Donna Marie Arsenault

v. Civil No. 16-cv-386-JL Opinion No.

U.S. Social Security Administration, Acting Commissioner

ORDER ON APPEAL

Donna Marie Arsenault has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments of degenerative disc disease of the lumbar

and cervical spine and status post cervical fusion, Arsenault

retains the residual functional capacity (“RFC”) to perform jobs

that exist in significant numbers in the national economy, and

thus is not disabled. See

(a), 416.905(a).

The Appeals Council later denied Arsenault’s request for review,

see

§ 404.967, with the result that the ALJ’s decision

became the final decision on her application, see id. § 404.981.

Arsenault then appealed the decision to this court, which has

jurisdiction under

(g) (Social Security).

Arsenault has moved to reverse the decision. See

LR 9.1(b). The Acting Commissioner of the SSA has cross-moved

for an order affirming the ALJ’s decision. See LR 9.1(e). After careful consideration, the court grants Arsenault’s

motion, denies the Acting Commissioner’s motion, and remands for

further proceedings.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner's findings of fact, so long as they are supported

by substantial evidence,”

that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “if a reasonable mind, reviewing the evidence in

the record as a whole, could accept it as adequate to support

his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991).

2 II. Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Arsenault’s request for

disability and disability insurance benefits. See

, 416.920. After determining that Arsenault had not

engaged in substantial gainful activity after the alleged onset

of her disability on July 12, 2013, the ALJ analyzed the

severity of her impairments. At this second step, the ALJ

concluded that Arsenault had two severe impairments:

degenerative disc disease of the lumbar and cervical spine and

status post cervical fusion.2

At the third step, the ALJ found that Arsenault’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.3 See

(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926. After reviewing the medical

evidence of record, Arsenault’s own statements, the opinion of

Arsenault’s primary doctor, Dr. Anthony G. Zwaan, M.D., and the

opinion of a non-examining State agency medical consultant,

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (document no. 16) is incorporated by reference. See LR 9.1(d). 2 Admin. R. at 35. 3 Id. at 36.

3 Dr. Hugh Fairley, M.D., the ALJ concluded that Arsenault

retained the RFC to perform light work with certain postural

limitations.4 Finding that, even limited in this manner,

Arsenault was able to perform jobs that exist in significant

numbers in the national economy, see

and

416.966, the ALJ concluded his analysis and found that Arsenault

was not disabled within the meaning of the Social Security Act.

III. Analysis

Arsenault argues, among other things,5 that the ALJ erred by

finding that Arsenault failed to follow prescribed treatment.

Under the pertinent rule,

[a]n individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which . . . can be expected to restore the individual's ability to work, cannot by virtue of such “failure” be found to be under a disability.

Titles II & XVI: Failure to Follow Prescribed Treatment,

, at *1 (S.S.A. 1982) (“SSR 82-59”). The ALJ invoked SSR

4 Id. at 36-42. 5 Arsenault argues that the ALJ erred in his RFC calculation by (1) finding that the medical evidence does not support Arsenault’s allegations as to the severity and limiting effects of her impairments and (2) affording no weight to Dr. Zwaan’s opinion. She also contends that the ALJ’s conclusion at step five, that Arsenault was able to perform jobs that exist in significant numbers in the national economy, was tainted by his errors earlier in the process. Because the court remands this case on other grounds, the court need not reach these arguments.

4 82-59 in the context of determining Arsenault’s RFC and, more

specifically, in his assessment of the credibility of her

statements concerning the intensity, persistence, and limiting

effects of the symptoms of her medically determinable

impairments. After noting that Arsenault “indicated to [her

orthopedist] that she wanted to identify her exact pain

generator and if necessary proceed with a lumbar fusion” in

early 2014, and in early 2015 told “her pain medication doctor[]

that she understood that she needs to have [lumbrosacral]

surgery,” the ALJ characterized the record as showing that

Arsenault delayed this surgery because, among other reasons, she

needed to take care of her mother.6 The ALJ cast this as a

failure to “follow treatment prescribed by physicians” and to

undergo a “recommended procedure” without offering the excuse

that she could not afford it or could not obtain health

insurance.7 “[B]ecause none of the acceptable reasons for

failure to follow prescribed treatment has been satisfied,” the

ALJ concluded, “the claimant is found to be without good reason

to follow her treating source’s recommendation.”8

6 Admin R. at 38-39. 7 Id. at 39. 8 Id.

5 As Arsenault correctly observes, the record suggests that

the surgery was not, in fact, prescribed by her physician. To

the contrary, she, herself, raised the lumbar surgery with her

orthopedist. In light of that undisputed fact, as the Acting

Commissioner concedes, the ALJ “erroneously referenced Social

Security Ruling 82-52 . . . and

, which are

inapposite.”9

The Acting Commissioner argues that this error was

harmless, however, because the ALJ may consider “a ‘reluctance

to pursue recommended treatments’ . . . in the assessment of a

Plaintiff’s subjective complaints.”10 Failure to pursue

recommended treatments certainly bears on the credibility of a

claimant’s complaints. See Rodriguez v. Astrue, No. 11-CV-

30119-MAP,

, at *3 (D. Mass. July 24, 2012) (“an

ALJ can consider a claimant's reluctance to pursue recommended

treatments . . . in assessing credibility”) (citations omitted).

Here, however, the parties agree that the treatments were

requested by Arsenault herself, rather than prescribed by her

physician. It is thus unclear whether or to what extent the

ALJ’s credibility analysis would change absent his clearly

9 Mot. to Affirm (doc. no. 12-1) at 3. 10

6 erroneous factual conclusion and his subsequent, inapposite

reliance on SSR 82-59.

IV. Conclusion

For the reasons discussed herein, Arsenault’s motion to

reverse and remand the Acting Commissioner’s decision11 is

GRANTED and the Acting Commissioner’s motion to affirm12 is

DENIED. The Clerk of Court is directed to enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

August 24, 2017

cc: Raymond J. Kelly, Esq. Terry L. Ollila, Esq.

11 Document no. 8. 12 Document no. 12.

7