UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Donna Marie Arsenault
v. Civil No. 16-cv-386-JL Opinion No. 2017 DNH 162 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 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Appeals Council later denied Arsenault’s request for review,
see id. § 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 42 U.S.C. § 405(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., 211 F.3d 652, 655 (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,” id., that is, “such evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (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., 955 F.2d 765, 769 (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 20 C.F.R.
§§ 404.1520, 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 20 C.F.R. §§ 404.1520(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 20 C.F.R. §§ 404.1566 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, 1982 WL
31384, 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.
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Donna Marie Arsenault
v. Civil No. 16-cv-386-JL Opinion No. 2017 DNH 162 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 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Appeals Council later denied Arsenault’s request for review,
see id. § 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 42 U.S.C. § 405(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., 211 F.3d 652, 655 (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,” id., that is, “such evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (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., 955 F.2d 765, 769 (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 20 C.F.R.
§§ 404.1520, 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 20 C.F.R. §§ 404.1520(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 20 C.F.R. §§ 404.1566 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, 1982 WL
31384, 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 20 C.F.R. § 404.1530, 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, 2012 WL 3042306, 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 Id.
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.