Buxton v. SSA 08-CV-022-SM 09/16/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robin Buxton, Claimant
v. Civil No. 08-cv-20-SM Opinion No. 2008 DNH 171
Michael J. Astrue. Commissioner. Social Security Administration. Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Robin Buxton,
moves to reverse the Commissioner's decision denying her
application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423 (the
"Act"). The Commissioner objects and moves for an order
affirming his decision. For the reasons given below, this matter
is remanded to the Administrative Law Judge ("ALJ") for further
proceedings consistent with this opinion.
Factual Background
I. Procedural History.
On February 16, 2006, claimant filed an application for
Disability Insurance Benefits and Supplemental Security Income
benefits under Titles II and XVI of the Act, alleging that she had been unable to work since December 31, 1998 due to symptoms
of post-traumatic stress disorder. She was awarded Supplemental
Security Income Benefits, with an established onset date of
disability of January 1, 2005. Nevertheless, her application for
Disability Insurance Benefits was denied on grounds that she was
not disabled just three months earlier, as of her date last
insured (i.e., September 30, 2004). She then requested, and was
granted, a hearing before an ALJ.
On April 26, 2007, claimant and her attorney appeared before
an ALJ, who considered claimant's application for Disability
Insurance Benefits de novo. At that hearing, claimant amended
her alleged disability onset date to November of 2000.
Administrative Record ("Admin. Rec.") at 210-11.1 Subsequently,
the ALJ issued a written decision in which he concluded that, as
of her date last insured, claimant retained the residual
functional capacity to perform the physical and mental demands of
a significant number of jobs existing in the national economy.
Accordingly, he concluded that claimant was not disabled, as that
1 Although it is a minor error, the ALJ's written decision incorrectly states that claimant's amended onset date was January 1, 2000. See Admin. Rec. at 13.
2 term is defined in the Act, prior to the date on which her
insured status expired.
Claimant sought review of the ALJ's decision by the Appeals
Council, which denied her request. As a result, 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 was not supported by substantial evidence and
seeking a judicial determination that she is disabled within the
meaning of the Act. She then filed a "Motion for Order Reversing
Decision of the Commissioner" (document no. 6). In response, the
Commissioner filed a "Motion for 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(d), the parties have
submitted a statement of stipulated facts which, because it is
part of the court's record (document no. 11), 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. Properly Supported Findings by the ALJ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(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 of the Commissioner are
conclusive if supported by substantial evidence.2 See 42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &
Human Services. 955 F.2d 765, 769 (1st Cir. 1991). Moreover,
provided the ALU's findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the contrary
position. See Tsarelka v. Secretary of Health & Human Services.
842 F.2d 529, 535 (1st Cir. 1988) ("[W]e must uphold the
[Commissioner's] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and 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.. 383 U.S. 607, 620 (1966).
4 substantial evidence."). See also Rodriquez v. Secretary of
Health & Human Services. 647 F.2d 218, 222-23 (1st Cir. 1981).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services. 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker. 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [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
[Commissioner], not the courts." Irlanda Ortiz. 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
to the ALJ's credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v. Secretary of Health & Human Services. 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &
Human Services. 803 F.2d 24, 26 (1st Cir. 1986)).
II. The Parties' Respective Burdens.
An individual seeking Social Security disability 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
5 to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42 U.S.C.
§ 423(d)(1)(A). The Act places a heavy initial burden on the
claimant to establish the existence of a disabling impairment.
See Bowen v. Yuckert. 482 U.S. 137, 146-47 (1987); Santiago v.
Secretary of Health & Human Services. 944 F.2d 1, 5 (1st Cir.
1991). To satisfy that burden, the claimant must prove that her
impairments prevent her from performing her former type of work.
See Gray v. Heckler. 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v. Secretary of Health & Human Services. 690 F.2d 5, 7
(1st Cir. 1982)). Nevertheless, the claimant is not required to
establish a doubt-free claim. Her initial burden is satisfied by
the usual civil standard: a "preponderance of the evidence." See
Paone v. Schweiker. 530 F. Supp. 808, 810-11 (D. Mass. 1982).
If the claimant has shown 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. See Vazquez v. Secretary of Health & Human Services.
683 F .2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. § 1512(g). If
the Commissioner shows the existence of other jobs that the
claimant can perform, then the overall burden to demonstrate
disability remains with the claimant. See Hernandez v.
6 Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Benko v.
Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982).
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. 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote. 690 F.2d at 6. When determining whether a claimant
is disabled, the ALJ is also required to make the following five
inquiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
her:
7 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.
42 U.S.C. § 423(d) (2) (A) .
With those principles in mind, the court reviews claimant'’
motion to reverse and the Commissioner's motion to affirm his
decision.
Discussion
I. Background - The ALJ's Findings.
In concluding that Ms. Buxton was not disabled within the
meaning of the Act, the ALJ first determined that she had not
been engaged in substantial gainful employment since January 1,
2000. Next, he concluded that claimant suffers from borderline
personality disorder and post-traumatic stress disorder ("PTSD"
both of which were deemed to be severe. Admin. Rec. at 15.
Nevertheless, the ALJ determined that those impairments,
regardless of whether they were considered alone or in
combination, did not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id.
The ALJ then determined that claimant retained the residual
functional capacity ("RFC") to perform a full range of exertional
work, concluding that she "has no physical limitations and can do
unskilled jobs not requiring complex, detailed instructions/
tasks." Admin. Rec. at 18. He noted, however, that claimant's
RFC was "minimally compromised by nonexertional limitations,"
concluding that she "has moderate limitations in some areas of
functioning which are affected by her impairments: specifically
in social functioning and maintaining concentration, persistence,
and pace." Ici. In light of those findings, and applying the
Medical-Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P,
Appendix 2, tables 1-3 (the "Grid"), as a guide, he concluded
that claimant's symptoms were "not severe enough to significantly
erode the number of jobs in the national economy which she can
perform." Admin. Rec. at 21. Accordingly, he found that
claimant was not disabled at any time through her date last
insured.
9 II. Claimant's Assertions of Error.
Claimant advances several arguments in an effort to
undermine the ALJ's conclusion that she was not, as of her date
last insured, disabled. For the most part, those arguments lack
merit. She does, however, identify one problem with the ALJ's
analysis. Although she does not develop the argument in any
detail, claimant suggests that the ALJ erred by relying
exclusively on the Grid, without the benefit of testimony from a
vocational expert. The Court of Appeals for the First Circuit
has said the following about the nature and proper use of the
Grid:
"The Grid," as it is known, consists of a matrix of the applicant's exertional capacity, age, education, and work experience. If the facts of the applicant's situation fit within the Grid's categories, the Grid directs a conclusion as to whether the individual is or is not disabled. However, if the applicant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust) that restrict his ability to perform jobs he would otherwise be capable of performing, then the Grid is only a framework to guide the decision.
Seavev v. Barnhart. 276 F.3d 1, 5 (1st Cir. 2001) (citations
omitted).
10 The purpose of the Grid is to streamline the process by
which the Commissioner may satisfy his burden of proving,at step
five of the sequential analysis, that jobs exist in the national
economy that the claimant can perform. See Ortiz v. Secretary of
Health & Human Services. 890 F.2d 520, 524 (1st Cir. 1989). In
short, it allows the Commissioner to meet that burden without
hearing testimony from a vocational expert. But, because the
Grid "is meant to reflect the potential occupational base
remaining to a claimant in light of his strength limitations,"
id., when a claimant suffers from "nonexertional impairments in
addition to exertional limits, the Grid may not accurately
reflect the availability of jobs such a claimant could perform."
Heggartv v. Sullivan. 947 F.2d 990, 996 (1st Cir. 1991)(emphasis
added).
Nevertheless, the First Circuit has held that an ALJ may
rely exclusively on the Grid to establish the existence of
occupations in which the claimant can engage provided the
claimant's nonexertional limitations do not impose more than a
marginal limitation on the range of work the claimant otherwise
has the exertional capacity to perform. See Ortiz, 890 F.2d at
524. But, "[i]f the occupational base is significantly limited
by a nonexertional impairment, the [Commissioner] may not rely on
11 the Grid to carry the burden of proving that there are other jobs
a claimant can do. Usually, testimony of a vocational expert is
required." Heggartv. 947 F.2d at 996 (citation omitted).
In this case, given the nature and severity of claimant's
mental impairments, the ALJ erred by relying exclusively upon the
Grid (even as a "framework" for his decision), rather than
obtaining the testimony of a vocational expert. The court of
appeals addressed this point at length in Ortiz. noting that the
"shorthand approach" of using the Grid as a framework to guide a
disability determination is only appropriate under certain
circumstances:
We think such a shorthand approach is permissible, so long as the factual predicate (that claimant's [mental impairment] does not interfere more than marginally with the performance of the full range of unskilled work) is amply supportable. . . . [S]o long as a nonexertional impairment is justifiably found to be substantially consistent with the performance of the full range of unskilled work, the Grid retains its relevance and the need for vocational testimony is obviated.
In the case of mental impairments, this inquiry actually entails two separate determinations: (1) whether a claimant can perform close to the full range of unskilled work, and (2) whether he can conform to the demands of a work setting, regardless of the skill level involved. As to the former, the Secretary has outlined the mental capabilities required for unskilled work as follows:
12 The basic mental demands of competitive remunerative unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.
Ortiz, 890 F.2d at 526 (quoting SSR 85-15, Titles II and XVI:
Capability to do Other Work - The Medical-Vocational Rules as a
Framework for Evaluating Solely Nonexertional Impairments, 1985
WL 56857 (Nov. 1984)) (emphasis supplied).
Here, the record strongly suggests that claimant's mental
impairments have substantially diminished her ability to
"understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting."
Id. (quoting SSR 85-15). See, e.g.. Admin. Rec. at 161 (in
section III of claimant's functional capacity assessment, the
examiner concludes that Ms. Buxton is "not able to maintain
attention and concentration for extended periods of time. She is
not able to perform activities within a schedule and maintain
regular attendance. She is not able to complete a normal workday
and workweek without interruptions from psychologically based
13 symptoms and perform at a consistent pace. . . . She is not able
to work in coordination or get along with others without being
distracted or distracting them. . . . She is not able to accept
instructions and respond appropriately to criticism from
supervisors."). If those conclusions (and other, similar,
conclusions in the record) are credited as true, the ALJ's
reliance on the Grid was in error. Instead, the ALJ should have
consulted a vocational expert to determine whether, in light of
claimant's nonexertional limitations, she was still capable of
performing substantial gainful activity at the non-skilled level.
Finally, the court cautions that if a question arises as to
when claimant's impairments became so severe as to render her
disabled, the ALJ should consult a medical expert. The court
addressed that issue at length in a recent opinion. See Moriartv
v. Commissioner. 07-cv-342-SM, 2008 DNH 158 (D.N.H. Aug. 28,
2008). See also Social Security Ruling 83-20, Titles I and XVI:
Onset of Disability, 1983 WL 31249 (1983).
Conclusion
This is, to be sure, a close case. While there is certainly
evidence in the record supportive of claimant's assertion that
she was disabled prior to her date last insured, there is also
14 evidence supportive of the conclusion that she was not. Among
other things, the ALJ appears to have correctly concluded that
claimant's impairments do not meet the severity requirements of
any listed impairments because she is not (or was not) "markedly
limited" in two of the four relevant areas of functioning.
Additionally, there is evidence of claimant's lack of consistent
treatment, both in terms of attending therapy sessions and taking
prescribed medications. A claimant's failure to follow a
prescribed treatment regimen, combined with a failure to
faithfully take prescribed medications (particularly when, as
here, the claimant reports decreased symptoms when faithfully
following the prescribed regimen), certainly undermines her
claims of disabling symptoms. See 20 C.F.R. § 404.1530. See
also Social Security Ruling ("SSR") 82-59, Titles II and XVI:
Failure to Follow Prescribed Treatment. 1982 WL 31384 (1982).3
3 The record suggests that claimant's failure to take medications as prescribed was a knowing and voluntary decision. See, e.g.. Admin. Rec. at 93 ("She was on Zoloft 100 mg qd in past, and did very well. She d/c [discontinued] in 9/01 because she felt she no longer needed it."). Claimant has not pointed to any opinions from either examining or non-examining medical sources that suggest her fallure/inability to take prescribed medications as instructed was the product of her mental impairments.
15 Nevertheless, in light of the fact that the Commissioner
determined that claimant was disabled (at least for purposes of
SSI benefits) as of January 1, 2005, he bears a relatively heavy
burden (given the substantial medical record in this case and
claimant's well-documented and lengthy history of mental health
disorders) to show that she was not disabled only three months
earlier, when her insured status expired. And, given the
quantity of evidence suggesting that claimant's nonexertional
(i.e., mental) impairments are precisely the type which severely
limit the occupational base of even non-skilled work, see Ortiz,
890 F.2d at 526, the court is persuaded that the ALJ should not
have relied exclusively on the Grid. Instead, he should have
consulted a vocational expert.
For the foregoing reasons, claimant's motion to reverse the
decision of the Commissioner (document no. 6) is granted to the
extent she seeks a remand to the ALJ for further proceedings.
The Commissioner's motion to affirm his decision (document no.
10) is denied. Claimant's motion to supplement the
administrative transcript (document no. 8) is denied as moot.
Pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter
is hereby remanded to the ALJ for further proceedings consistent
16 with this order. The Clerk of Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
St/feven J./McAuliffe mited States District Judge
September 16, 2008
cc: Elizabeth R. Jones T. David Plourde, Esq.