UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nancy Cindy Cassidy, Claimant

v. Case No. 17-cv-451-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g), claimant, Nancy Cassidy,

moves to reverse or vacate the Acting Commissioner’s decision

denying her application for Disability Insurance Benefits under

Title II of the Social Security Act. See

(the

“Act”). The Acting Commissioner objects and moves for an order

affirming her decision.

For the reasons discussed below, claimant’s motion is

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

Factual Background

I. Procedural History.

Claimant has unsuccessfully pursued Social Security

benefits on two prior occasions. In July of 2010, she filed applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) benefits, alleging an onset

of disability in March of 2010. An ALJ denied those

applications by decision dated January 20, 2012. A year later,

in April of 2013, claimant again filed for both DIB and SSI

benefits, alleging a disability onset date of March of 2012. An

ALJ denied those applications by decision dated December 24,

2014.

Most recently, in March of 2015, claimant filed an

application for Disability Insurance Benefits, alleging that she

was disabled and had been unable to work since December 25, 2014

(the day following her last denial). Claimant was 40 years old

at the time and had acquired sufficient quarters of coverage to

remain insured through June of 2017. Claimant’s application was

denied and she requested a hearing before an Administrative Law

Judge (“ALJ”).

In June of 2016, claimant, her attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s application de novo. Following the hearing, the ALJ

held the record open so claimant might submit additional

evidence in support of her application. In July, claimant

provided those additional materials. See Admin. Rec. at 30-87;

2 625-30. The ALJ then issued his written decision, concluding

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

Act, at any time prior to the date of his decision (October 12,

2016). In response, claimant requested review by the Appeals

Council. That request was denied. Accordingly, the ALJ’s

denial of claimant’s application for benefits became the final

decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

Claimant then filed a “Motion to Reverse Decision of

Commissioner” (document no. 7). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 10). Those motions are

pending.

II. Stipulated Facts.

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

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 9), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

3 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). 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). Importantly, 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).

II. The Parties’ Respective Burdens.

An individual seeking DIB benefits is disabled under the

Act if he or she is unable “to engage in any substantial gainful

4 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).

The Act places the 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 her impairment prevents her from performing her

former type of work. See Manso-Pizarro v. Secretary of Health &

Human Services,

(1st Cir. 1996); Gray v. Heckler,

(1st Cir. 1985). If the claimant demonstrates

an inability to perform her previous work, the burden shifts to

the Commissioner to show that there are other jobs in the

national economy that she can perform, in light of her age,

education, and prior work experience. See Vazquez v. Secretary

of Health & Human Services,

(1st Cir. 1982). See

also

and 404.1560.

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

5 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);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

. See generally Barnhart v. Thomas,

, 24

6 (2003). Accordingly, he first determined that claimant had not

been engaged in substantial gainful employment since her alleged

onset of disability: December 25, 2014. Admin. Rec. at 16.

Next, he concluded that claimant suffers from the following

severe impairment: psoriatic arthritis.

In addition to

that severe impairment, the ALJ also noted that claimant alleged

disability due to carpal tunnel syndrome, degenerative disc

disease, obesity, synovial cyst, and osteoarthritis of the

knees. But, as to those alleged impairments, he concluded that

“there is little evidence that [they] result in more than

minimal, if any limitation in the claimant’s ability to perform

work-related activities.”

He then concluded that claimant

does not have an impairment, or combination of impairments, that

meets or medically equals one of the impairments listed in Part

404, Subpart P, Appendix 1. Admin. Rec. at 19.

Next, the ALJ determined that claimant retained the

residual functional capacity (“RFC”) to perform the exertional

demands of the full range of light work.

In light of that

finding, the ALJ found that claimant is capable of performing

her past relevant work as a cashier, fast food worker, lead

cashier, and customer complaint clerk.

. See also

(vocational expert’s testimony about claimant’s work

history). Accordingly, the ALJ concluded that claimant has not

7 been under a disability, as defined in the Act, through the date

of his decision.

Claimant challenges the ALJ’s decision on four grounds,

asserting that he erred by: (1) failing to obtain a medical

expert to opine on the “functional impact of the claimant’s

lumbar spinal impairment and recurrent synovial cysts,”

Claimant’s memorandum at 5; (2) failing to properly consider the

functional impact of claimant’s abdominal surgeries; (3)

affording too much weight to the opinion of Dr. Marcia Lipski (a

non-examining state agency physician); and (4) improperly

affording “partial weight” to the opinion issued by an ALJ in

claimant’s second (of three) applications for Social Security

benefits. None of those challenges to the ALJ’s decision has

merit.

Relevant Facts

Before turning to the merits of claimant’s assertions, it

is, perhaps, appropriate to recite a brief summary of the

medical evidence of record.

8 A. Medical Opinions.

In April of 2015, Dr. Jan Jacobsen conducted a

psychological review of claimant and concluded she had no severe

mental impairments. Admin. Rec. at 192-93.

In June of 2015, Dr. Marcia Lipski reviewed claimant’s

medical records and concluded she could perform the full range

of light work. Id. at 194-95.

In July of 2015, Cindy Student conducted a functional

capacity assessment of claimant and opined that claimant put

forth “variable levels of physical effort,” demonstrated

“inconsistency with regard to her pain and disability reports,”

exhibited a heart rate consistent with low effort, and walked

with an “antalgic gait which fluctuated in severity” during the

testing day. Id. at 586-87. She also noted that although

claimant “demonstrates a high perception of disability,” such a

disability “was not consistent with observed function and

behaviors throughout testing.” Id. at 587. Ms. Student did not

expressly accuse claimant of overstating her symptoms, or

intentionally giving less than full effort, or malingering, but

that is a plausible inference that could be drawn from her

report.

9 And, finally, on August 15, 2015, Dr. Lisa Doyle

(claimant’s treating physician), completed a “Physician/

Clinician Statement of Capabilities” in which she opined that

claimant was capable of performing the physical tasks associated

with light work, with some postural limitations. Id. at 611.

Nevertheless, she checked a box on that form indicating that

claimant is not “capable of participating in work-related

activities at this time.” Id. at 612.

B. Surgical Treatments.

In mid-January 2016, claimant visited Elliot Hospital for a

steroid joint injection for back pain, and staff also attempted

to burst a facet cyst. Admin. Rec. at 580–81. She reported no

immediate relief, and staff concluded they would try to burst

the cyst again in two weeks. A later, undated, MRI report

indicated a cyst remained near claimant’s spine which narrowed

the left lateral recess along with mild to moderate narrowing of

the central canal and moderate bilateral facet arthrosis at the

L4-L5 level. Id. at 613.

In May 2016, claimant visited neurologist Dr. Paul Wang at

New Hampshire NeuroSpine Institute, reporting worsening low back

pain extending into her left leg, with occasional numbness and

tingling. Id. at 614. Dr. Wang assessed a synovial cyst in

10 claimant’s lumbar spine, and spondylolisthesis of lumbosacral

region. He recommended surgery (a laminectomy procedure), as

well as synovial cyst removal. Id. at 616–17.

On June 9, 2016, claimant and her attorney appeared for the

hearing before the ALJ.

On June 29, 2016, claimant visited a physician’s assistant

at New Hampshire NeuroSpine Institute for a preoperative

counseling visit prior to her upcoming surgery. The physician’s

assistant noted, “The patient understands this is being done

electively and is by no means emergent.” Id. at 628. On July

8, 2016, the date the lumbar spinal surgery had been scheduled

to be performed, claimant instead underwent a sigmoid colectomy

and colostomy after CT scan images showed she had a perforated

sigmoid colon. Id. at 31-45.

On October 12, 2016, the ALJ issued his decision. Three

months later, on January 22 of 2017, claimant underwent

additional surgery (a cholecystectomy), because she had

persistent biliary colic symptoms. And, a week later, claimant

underwent a small bowel resection to remove an obstruction

caused by a sponge inadvertently left after the sigmoid

colectomy performed on July 8, 2016.

11 Discussion

A. Claimant’s Back Pain and Synovial Cyst.

Claimant alleges that the ALJ erred by failing to call upon

a medical expert to assess the functional limitations imposed by

her back pain and synovial cyst. With regard to claimant’s

alleged back pain, the ALJ concluded that it was not severe,

observing that “Although claimant has consistently complained of

low back pain, in 2016, a magnetic resonance imaging (“MRI”) of

the lumbar spine showed mild findings. Additionally, the record

reveals that the claimant has exhibited normal musculoskeletal

range of movements.” Admin. Rec. at 17. That finding is amply

supported by the evidence of record. See, e.g., Id. at 463

(noting that claimant experienced significant improvement of

discomfort on medications, had a normal MRI, and was “non-

compliant with labs and follow up”); 192-93 (Dr. Marcia Lipski

concluded that claimant could perform the full range of light

work); 586-98 (functional capacity test suggesting that while

claimant “demonstrates a high perception of disability,” she put

forth “variable levels of effort” during testing and is capable

of performing far more physical activity than she states). See

also Id. at 176-77 (noting that in an August 2013, in connection

with an earlier application for Social Security benefits,

claimant underwent a functional capacity test during which she

exhibited 4 of 5 positive Waddell signs - an indication that the

12 source of her alleged pain might be “non-organic” or

psychological and which the ALJ interpreted as a sign of

potential malingering).

As for claimant’s synovial cyst, the ALJ noted that she had

been successfully treated in early 2016. And, while he

acknowledged that the cyst had returned (and that claimant was

scheduled for surgery to address it), he noted that there “are

no medical opinions or evidence of record that would support a

finding that this particular impairment will last the required

12 months.” Admin. Rec. at 17. Again, that conclusion is fully

supported by the record.

But, says claimant, the alleged limitations imposed upon

her by the cyst (and its eventual surgical removal), when

combined with the fact that she had a sigmoid colectomy on July

8, 2016 (after the hearing, but before the ALJ’s decision),

would render her “disabled” for more than the requisite one-year

period. Specifically, claimant asserts that “If things had gone

as planned, the sequential recovery periods from the three

surgeries - the initial colectomy and subsequent reversal of the

colostomy and lumbar spinal surgeries - would have lasted longer

than 12 months.” Claimant’s memorandum at 7. That is, however,

entirely speculative. There is no record support for that

13 claim. Indeed, claimant’s discharge notes following the initial

colectomy surgery suggest her recovery time would be minimal.

See Admin. Rec. at 34, Discharge Summary Report (“The patient

was advised that she may resume regular activity but she should

not lift greater than 10 pounds for 4-6 weeks after surgery.”).

There was no need to obtain a medical expert’s opinion about the

functional impact of claimant’s cyst removal and colectomy

because the record evidence supported the conclusion that those

surgeries, whether viewed alone in combination, would impose on

claimant only transitory limitations that would not impact

claimant for the requisite one-year period.

B. Claimant’s Abdominal Surgeries.

Claimant also asserts that the ALJ erred by failing to

properly admit into the record the medical records concerning

her colon surgery in July of 2016. Assuming the ALJ did, in

fact, err as claimant says, claimant has not shown any prejudice

from that error. In short, those records (which are before the

court) provide no support for claimant’s assertion that her

colon impairment would cause work limitations for a continuous

period of at least 12 months. And, as the Acting Commissioner

correctly notes, claimant bears the burden of showing that the

alleged error resulted in some prejudice to her. See, e.g.,

Shinseki v. Sanders,

(2009) (“[T]he burden of

14 showing that an error is harmful normally falls upon the party

attacking the agency’s determination”); Ward v. Comm’r of Social

Security,

(1st Cir. 2000) (“While an error of

law by the ALJ may necessitate a remand, a remand is not

essential if it will amount to no more than an empty exercise.”)

(citations omitted).

Claimant next faults the Acting Commissioner for not taking

into account evidence she submitted to the Appeals Council after

the ALJ’s decision in October of 2016. Specifically, she says:

Subsequent medical developments showed that the medical evidence regarding the initial abdominal surgery, when considered with other medical evidence, would likely affect the outcome of the case. As mentioned above, on January 28, 2017, seven months after the initial abdominal surgery, the Plaintiff had to undergo a small bowel resection to remove a blockage caused by a laparotomy sponge left behind after the initial surgery. These records confirm that the surgeon who performed the original Hartmann operation in July of 2016, Richard Murphy, M.D., had planned to perform colostomy reversal surgery in March. Although these records and the cover letter were submitted to the Appeals Council two weeks before it issued its decision on September 1, 2017, the Appeals Court failed to enter the records or cover letter into the administrative record.

Claimant’s memorandum at 10. Claimant’s assertion - at least as

the court understands it - raises two issues: whether such

evidence impacts the ALJ’s decision, and whether such evidence

impacts the Appeals Council’s decision not to decline review.

15 First, that evidence was not part of the record before the ALJ

and, therefore, cannot form the basis of this court’s

“substantial evidence” review of the ALJ’s decision. As this

court has previously noted, the “The ALJ’s determination is

reviewed based on the evidence of record at the time of his

decision, so this court cannot consider additional evidence

submitted only to the Appeals Council.” Costa v. Astrue,

, at *1 (D.N.H. Nov. 3, 2010).

Second, to the extent claimant challenges the Appeals

Council’s denial of her request to review (it is not clear that

she does), claimant had not shown that the Appeals Council’s

discretionary decision rested on “an explicit mistake of law or

other egregious error.” Mills v. Apfel,

(1st Cir.

2001). Moreover, claimant has pointed to no evidence suggesting

that such information could have had an impact on her

application for benefits because, again, nothing in those

medical records suggests that claimant’s surgeries would result

in an impairment that would “be expected to last for a

continuous period of not less than 12 months.”

(d)(1)(A). Although claimant has introduced evidence of

those surgeries, she has not introduced any evidence (e.g.,

opinions from the surgeons or other treating sources) about the

impact those surgeries had upon her ability to perform work-

16 related activities, or the expected duration (if any) of any

resulting disability.

C. Weight Afforded to Opinions of Dr. Marcia Lipski.

As noted above, Dr. Lipski (the non-examining state agency

physician) reviewed claimant’s medical records and opined that

she could perform the full range of light work. Admin. Rec. at

194-195. That opinion was supported, at least in part, by the

opinion of Dr. Lisa Doyle (claimant’s treating physician), who

stated that claimant was capable of performing the physical

requirements of light work, with some postural limitations. Id.

at 611. The ALJ afforded Dr. Lipski’s opinion “great weight,”

noting:

Although [Dr. Lipski] did not have an opportunity to examine the claimant, her findings are consistent with the medical evidence provided. Diagnostic imaging shows that the claimant’s condition is not significantly limiting and there is no indication that her condition has significantly worsened. Although the record shows that the claimant is scheduled for surgery, there is no indication that the surgery will worsen her condition. Currently, the claimant has continued to receive only conservative care.

Admin. Rec. at 22.

Claimant faults the ALJ for assigning Dr. Lipski’s opinion

great weight because Dr. Lipski did not have the benefit of

subsequent MRI testing (revealing claimant’s synovial cyst) or

17 medical records regarding her treatments for that cyst as well

as her subsequent abdominal surgery. But, as the court has

noted previously, nothing in the record suggests that claimant’s

various surgical treatments resulted in anything other than

modest recovery times, after which her symptoms were

(presumably) resolved or, at a minimum, ameliorated.

Importantly, claimant points to nothing in the record which even

suggests that any impairment resulting from those surgeries

would have met the requisite one-year period necessary to

constitute a disability.

D. ALJ’s Misuse of Prior Benefits Denial.

As noted above, claimant unsuccessfully sought Social

Security benefits on two earlier occasions. And, the ALJ gave

“partial weight” to the immediately-prior ALJ decision denying

claimant’s applications, noting that claimant’s current alleged

disability began one day after the most recent decision denying

her benefits was issued. Specifically, he wrote:

In the present case, little weight is given to the prior decision [denying claimant’s application for benefits] dated January 20, 2012 because I find that it is too remote. However, partial weight is given to the prior Administrative Law Judge decision dated December 24, 2014 because it is highly probative of the claimant’s residual functional capacity for the period that began only one day after the previously adjudicated period. Because there is an absence of evidence to the contrary, the claimant’s condition

18 very likely remained unchanged within this discrete period. Although the probative value of a prior finding relating to a claimant’s medical condition will likely diminish as the timeframe expands, it remains strong in a case such as this where the relevant period begins one day immediately after the date of the prior adjudication.

Admin. Rec. at 14 (emphasis supplied). That was an error.

As claimant correctly notes, an ALJ (at least outside of

the Fourth Circuit) is not permitted to rely upon findings from

a previous denial of benefits. Instead, the ALJ must consider

“the facts and issues de novo in determining disability with

respect to the unadjudicated period.” Social Security

Acquiescence Ruling AR 00-1(4), Effect of Prior Disability

Findings on Adjudication of a Subsequent Disability Claim,

at *3 (Jan. 12, 2000). In other words, an ALJ may “not

consider prior findings made in the final determination or

decision on the prior claim as evidence in determining

disability with respect to the unadjudicated period involved in

the subsequent claim.”

Again, however, claimant has failed to demonstrate that any

harm flowed from the ALJ’s error. Had this been a closer case,

perhaps that error might be said to have had some meaningful

impact on the ALJ’s final determination. But, this is not a

19 particularly close case. Independent of the evidence upon which

the ALJ erroneously relied, the record amply supports the ALJ’s

various decisions and it is plain that the minor error

identified by claimant was harmless. There is, then, no basis

to remand this matter for additional proceedings. See, e.g.,

Ward,

.

Conclusion

Judicial review of the ALJ’s decision is both limited and

deferential. This 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.

Consequently, the issue before the court is not whether it

believes claimant is disabled. Rather, the permissible 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 - as they are in this case - 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) (“[W]e must uphold the [Commissioner’s]

20 conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence.”); Rodriguez v. Secretary of Health & Human Services,

(1st Cir. 1981) (“We must uphold the

[Commissioner’s] findings in this case if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the

arguments advanced by both the Acting Commissioner and the

claimant, the court concludes that there is substantial evidence

in the record to support the ALJ’s determination that claimant

was not “disabled,” as that term is used in the Act, at any time

prior to the date of the ALJ’s decision (October 12, 2016). The

ALJ’s decision to afford Dr. Lipski’s opinions “great weight,”

his assessment of claimant’s various surgeries, and his

(implicit) decision not to solicit additional expert medical

testimony about claimant’s residual functional capacity are all

supported by substantial record evidence. And, as noted, while

the ALJ did err in giving any weight to the findings made by

another ALJ in the context of one of claimant’s prior

applications, that error was harmless (at least claimant has not

shown it to be otherwise).

21 For the foregoing reasons, as well as those set forth in

the Acting Commissioner’s legal memorandum, claimant’s motion to

reverse the decision of the Commissioner (document no. 7) is

denied, and the Acting Commissioner’s motion to affirm her

decision (document no. 10) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 5, 2018

cc: Peter K. Marsh, Esq. Robert J. Rabuck, Esq. Terry L. Ollila, AUSA

22