Fogg v . SSA CV-11-164-PB 7/6/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Joy Fogg
v. Civil N o . 11-cv-164-PB Opinion N o . 2012 DNH 116 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Joy Fogg seeks judicial review of the decision by the
Commissioner of the Social Security Administration denying her
applications for supplemental security income, disability
insurance, and disabled widow’s benefits. Fogg alleges that the
decision of the Administrative Law Judge (“ALJ”) who considered
her applications is not supported by substantial evidence and
that the ALJ improperly discounted both the medical opinions of
her treating physicians and her subjective pain complaints. For
the reasons provided below, I grant Fogg’s motion to reverse the
Commissioner’s decision.
I. BACKGROUND1
1 Except where otherwise noted, the background information is drawn from the parties’ Joint Statement of Material Facts (Doc. N o . 1 1 ) . See LR 9.1(b). I cite to the administrative record with the notation “Tr.” 2 I do not discuss in detail the treatment notes related to Fogg’s hypertension, blurred vision, diarrhea, diabetes, migraines, and gastric reflux because they are not relevant to my analysis of the issues presented. 3 Fogg contends that I should adopt the interpretation of SSR 96- 7p advanced by some courts that the phrase “not substantiated by Fogg is fifty-three years old, and discontinued her education
after graduating from high school. T r . 2 8 . Fogg’s past
relevant work included electronics parts assembly, as well as
work as a stenciler, garment folder, and hand packager in the
textile industry. T r . 46-47. She stopped working to care for
her ill husband who died in May 2005. Fogg alleges that
degenerative disc disease of her lower back, kidney disease,
dizzy spells, depression, hypertension, blurred vision,
diarrhea, diabetes, female stress incontinence, migraines, and
gastric reflux caused her to become disabled as of December 3 1 ,
2006. Pl’s Mem. Of Law in Support of Mot. for Order Reversing
the Decision of the Comm’r. (Doc. N o . 8 - 1 ) .
A. Procedural History
On June 1 1 , 2008, Fogg filed applications for supplemental
security income, disability insurance and disabled widow’s
benefits. Following the initial denial of her claim, Fogg
requested an administrative hearing before an ALJ, which she
attended on September 2 7 , 2010. At the hearing, Fogg and a
vocational expert testified, and she was represented by counsel.
The ALJ issued a decision dated October 2 6 , 2010, denying
Fogg’s applications. The Decision Review Board (“DRB”) selected
her claim for review, but did not complete its review of Fogg’s
claim within the allotted time, thereby leaving the ALJ’s
decision as the final decision of the Commissioner.
2 3 B. Medical Evidence
Fogg alleges various medical conditions that, in
combination, cause her to be disabled. Doc. N o . 8-1 at 2 . I
begin by discussing the evidence that pertains to her renal and
urologic conditions and then turn to her complaints of low back
pain, depression, and dizziness.2
1 . Renal and Urologic Conditions
Fogg has consulted various physicians for renal and
urologic problems. On January 1 1 , 2006, Fogg presented to
Manchester Urology Associates for stress incontinence and kidney
stones. She returned on February 27 complaining of another
kidney stone and pain, for which she was prescribed Percocet and
sent for a CT study that showed multiple stones.
During a May 3 0 , 2006 appointment with D r . Karen Calegari,
her primary care physician (“PCP”) at the time, Fogg reported
that Percocet was helping her pain and that she continued to
pass kidney stones. On July 6, Fogg saw D r . Rick Phelps, a
urologist, for kidney stones and pain.
After two urinalyses showed protein, Fogg was referred to
Dr. David Friedenberg, a nephrologist. On September 6, D r .
Friedenberg noted evidence of vascular disease and recommended
2 I do not discuss in detail the treatment notes related to Fogg’s hypertension, blurred vision, diarrhea, diabetes, migraines, and gastric reflux because they are not relevant to my analysis of the issues presented. 4 discontinuation of Fogg’s anti-steroidal medications. Later
that month, following a renal ultrasound and other lab work, D r .
Friedenberg became concerned that Fogg’s left kidney was
shrunken and her blood sugar was elevated. He ordered a kidney
biopsy, prescribed Lisinopril and referred Fogg to an
ophthalmologist to confirm vessel damage.
Fogg underwent a kidney biopsy on October 1 6 , which showed
significant inflammation and a moderate degree of chronic kidney
damage. On November 7 , D r . Friedenberg discontinued Renitidine,
because he suspected that the renal problems were caused by an
allergic reaction to the prescription. The biopsy also revealed
sclerosis of the glomerulus and blood vessels. Fogg was
instructed on medication and lifestyle changes to manage
vascular disease risk. On January 1 2 , 2007, Fogg’s renal and
urologic issues were stable. T r . 480.
An x-ray of Fogg’s kidneys on May 1 5 , 2007, showed the
possibility of small stones. Two days later, D r . Friedenberg
determined that Fogg’s renal failure was stable. T r . 444.
On June 5 , 2007, Fogg was seen by D r . Sarah McAleer, a
urologist. Fogg noted frequently passing stones and continuing
problems with incontinence when coughing or sneezing. Although
she stated that physical therapy was helping, Fogg reported
wearing five pads a day to absorb the urine. D r . McAleer
5 diagnosed her with female stress incontinence without
spontaneous leakage and recommended physical therapy.
Later that month, Fogg complained of kidney stones and
pressure in her back to D r . Calegari, who prescribed Percocet.
In a follow-up on August 1 6 , Fogg reported passing multiple
stones and requested more Percocet, which D r . Calegari
prescribed.
An abdominal x-ray on December 4 , and an ultrasound the
next day showed kidney stones in both kidneys. On December 1 0 ,
Fogg underwent a urologic examination with D r . McAleer. Fogg
had blood and protein in her urine and a kidney stone. She
stated that she was not bothered by her stress incontinence. An
abdominal x-ray performed on December 18 showed a cluster of
between four and five kidney stones in her left kidney, and
another, separate stone in the same kidney.
On December 2 4 , D r . Stephen Smith of Manchester Urology
Associates prescribed Percocet for Fogg’s back pain and
recommended that she increase her water intake.
Fogg presented to Catholic Medical Center on May 3 1 , 2008,
for nausea and diarrhea that had lasted one week. Fogg was
diagnosed with acute, chronic renal failure, and was
hospitalized for four days. T r . 349. Her renal ultrasound,
abdominal x-rays, and EKG were all unremarkable. On June 1 0 ,
Dr. Calegari noted that her renal condition had improved.
6 A few days later, Fogg reported to D r . McAleer that she was
wearing between one and two pads a day to absorb urine, and had
passed stone fragments. On September 9, however, Fogg denied
experiencing incontinence to her new PCP, D r . Peter Kiprop.
On December 3 0 , Fogg saw D r . Alfred Bertagnoll for pain,
and an abdominal x-ray showed a stone in Fogg’s right kidney.
Fogg returned on January 9, 2009, reporting that she had passed
the stone, but tests showed an increased risk for kidney stone
formation and suboptimal urine volume.
Due to a concerning lab result, on March 12 D r . Kiprop
instructed Fogg to follow up with D r . Friedenberg, who informed
her that her renal function was deteriorating. T r . 616. He
suspected it was caused by renal artery stenosis in one or both
kidneys. An April 7 ultrasound showed an atrophic left kidney,
which D r . Friedenberg concluded was evidence of renal artery
stenosis, putting her at risk for progression of renal issues
and renal failure even though her lab work showed her current
kidney functioning at baseline.
Fogg returned to D r . McAleer on June 2 2 , 2009, complaining
of bladder pressure and stress incontinence with moderate
improvement. Although an abdominal x-ray did not clearly show a
uretal stone, D r . McAleer concluded that a stone was present,
and prescribed Flomax and Percocet. After another abdominal x-
ray confirmed the stone’s presence, Fogg underwent surgery to
7 remove it on July 8 . During her post-surgery visit on July 3 1 ,
Fogg was doing well.
Dr. Bijoy Kundu, Fogg’s new PCP, noted her history of
kidney stones in his office notes from January 7 and February 4 ,
2010. T r . 749, 751. On April 2 9 , 2010, Fogg’s labs showed a
rising creatinine level. When the level continued to rise,
several of her prescriptions were stopped.
During her appointment on June 2 , D r . Richmond noted that
Fogg’s major issue was renal, but on July 7 , he noted that her
test results were at baseline. An abdominal CT scan on
September 2 showed a renal stone, moderate atrophy of her left
kidney, and mild to moderate atherosclerotic disease.
Fogg was admitted to Catholic Medical Center on September
13. A CT angioaorta test confirmed that her left kidney was
shrunken and there was a possible lower renal stone. She was
discharged on September 17 with a diagnosis of atherosclerotic
vascular disease.
2. Low Back Pain
Concurrent with the aforementioned treatment, Fogg also
sought treatment for mid and lower back pain. On September 8 ,
2006, Fogg was examined by D r . Calegari, who noted that she
ambulated without difficulty, had a full range of motion in her
hips, and had point tenderness around L4-5. Fogg was prescribed
a Lidoderm patch. An x-ray of her lumbar spine performed a few
8 days later showed possible spondylosis at L 5 , as well as
degenerative joint disease at L4-5 and L5-S1. In late
September, Fogg reported that the Lidoderm patch had not helped
her pain. She was able to walk and bend normally, but reported
increased pain when lying down and getting u p . D r . Calegari
prescribed Flexeril, but on October 2 6 , Fogg reported that
Flexeril was not helpful. D r . Calegari changed her prescription
to Soma and referred Fogg to The Orthopedic Center.
On November 1 , Fogg consulted William Mullen, P.A.-C, at
The Orthopedic Center. He diagnosed her with a lumbar strain,
and recommended continuing physical therapy and modifying her
activities as needed. At a follow-up appointment later that
month, her lumbar strain had significantly improved. T r . 433.
Mr. Mullen recommended that she continue with a home exercise
program and follow up as needed. Id.
Dr. Calegari prescribed Percocet to treat Fogg’s back pain
on July 12 and August 1 6 , 2007. T r . 376, 377. D r . McAleer
similarly prescribed Percocet to treat Fogg’s pain on December
24.
On August 8 , 2008, Fogg presented to the Catholic Medical
Center emergency room complaining that a fall had injured her
lower back along with her right knee and wrist.
Fogg presented to D r . Kiprop on September 9, 2008, for neck
and back pain that radiated down her legs. Fogg rated the pain
9 at an eight out of ten, stating that it worsened with movement.
She acknowledged that a heating pad helped.
On October 1 7 , D r . Jonathan Jaffe, a non-examining, non-
treating physician, assessed Fogg’s physical residual functional
capacity (“RFC”). He concluded that although her claims of back
pain were credible, Fogg could lift twenty pounds occasionally,
and ten pounds frequently, and that she could push or pull
without restriction. T r . 5 3 1 , 537. He stated that Fogg could
balance, kneel, bend or crouch occasionally, and could stand,
walk or sit for six hours in an eight-hour workday. Tr. 531,
532.
A lumbar MRI performed on February 1 3 , 2009 showed
degenerative changes at L4-5 and extruded disc material to the
left at that level. A cervical MRI revealed a left paracentral
protrusion at C6-7, resulting in mild anterior cord impingement.
On February 1 5 , Fogg presented at the Catholic Medical
Center emergency room for bilateral lower back pain that
worsened with movement. She reported that the pain had started
in the autumn. An examination showed a limited range of motion,
tenderness, and pain with straight leg raises. At a follow-up
with D r . Kiprop two days later, Fogg reported that the Percocet
she received at the emergency room worked well, though she still
had severe pain that became worse when she walked. D r . Kiprop
concluded that Fogg had a chronic backache with acute
10 exacerbation. He prescribed Percocet and referred Fogg to a
neurosurgeon. When she returned to D r . Kiprop’s office on March
1 2 , she reported that the medication was not helping her pain.
Dr. Kiprop informed Fogg that, due to her renal issues, she had
to stop using NSAIDs to relieve her pain.
A month later, D r . Hughes noted Fogg’s one-year history of
back pain that affected her sleep and movement. On April 1 5 ,
Fogg went to the Dartmouth Hitchcock Medical Center for
evaluation of her lower back pain, which she reported had
started a year prior. Nurse Practitioner Linda Brown found that
Fogg ambulated regularly, could heel and toe walk, and had pain
with palpitation and movement. Fogg reported having the pain
for one year. M s . Brown determined that the disc degeneration
at L4-5 was the likely cause, but felt it best to wait until
Fogg’s renal evaluation was completed to address her spinal
issue. Fogg’s pain medication was increased, and she was given
a book entitled “Treat Your own Back.”
On May 1 3 , Fogg was evaluated by D r . Kiprop for continuing
back pain. She noted that the Neurontin helped, and D r . Kiprop
prescribed more Neurontin. Fogg complained again, however, of
lower back pain on September 1 7 .
Fogg consulted D r . Kundu on January 7 and February 4 , 2010
about her lower back pain. T r . 7 5 0 , 751. In his medical source
statement dated February 2 2 , D r . Kundu opined that Fogg could
11 not lift or carry more than ten pounds, and could not sit, stand
or walk for more than one hour in an eight-hour work day. Dr.
Kundu cited degenerative disc disease of the lumbar spine as the
rationale for his opinion. T r . 634.
At an appointment on June 2 , 2010, D r . Richmond noted that
Fogg could not use surgery to treat her back pain due to
potential complications of her renal issues. On July 7 , 2010,
Dr. Richmond again noted Fogg’s continuing low back pain.
Dr. Richmond completed a medical source statement on
September 2 9 , 2010, opining that Fogg could not carry or lift
more than ten pounds, could not sit for more than 30 minutes at
a time, and could not stand or walk for more than 15 minutes at
a time. T r . 741. In addition, he opined that Fogg could only
sit, stand, or walk for four hours in an eight-hour work day.
Id. As support for his opinion, D r . Richmond cited the neck and
lower back MRIs, which showed degenerative disc disease. Tr.
744.
3. Depression
Fogg also sought treatment for depression during the
relevant time period. On May 9, 2007, D r . Calegari prescribed
Celexa in response to Fogg’s complaints about depression, poor
appetite, feeling overwhelmed, and an inability to concentrate.
On May 1 7 , Fogg complained of depression to D r . Friedenberg.
12 On June 2 0 , D r . Calegari increased Fogg’s Celexa
prescription in response to her continuing complaints of
depression. At her next appointment on July 1 2 , D r . Calegari
again increased the prescription. When Fogg returned on August
1 6 , she reported improvement, and D r . Calegari noted that Fogg
was doing well on Celexa.
Upon request from the Office of Social Security Disability
Determination, Fogg saw D r . M . Lorene Sipes, a licensed
psychologist, on August 2 5 , 2008. Along with a depressed mood,
Fogg reported experiencing crying spells, hypersomnia, feelings
of guilt and worthlessness, and reduced energy, appetite and
motivation. D r . Sipes concluded that Fogg could comprehend
simple oral or written instructions, interact appropriately,
manage routine work demands, and concentrate well enough to
complete tasks. She noted that Fogg’s long-term memory was
below normal limits. She diagnosed Fogg with a single episode
of major depressive disorder, but opined that this would not
interfere with her ability to work.
During an appointment with D r . Kiprop on September 9, Fogg
noted that Celexa was helping to manage her depression, and that
she was not ready to attend counseling.
On September 1 7 , 2008, D r . Edward Martin, a non-examining,
non-treating physician, reviewed the medical evidence of record.
13 He summarized D r . Sipes’ conclusions and determined that Fogg’s
mental impairment was not severe.
4. Dizziness
Lastly, Fogg was seen for recurrent dizziness. During an
appointment on November 1 , 2006, at The Orthopedic Center, and
another appointment on August 2 5 , 2008 with D r . Sipes, Fogg
complained of dizziness. D r . Kiprop wrote a letter dated
December 2 , 2008, stating that Fogg could not work due to
dizziness and unspecified other medical issues.
On January 1 3 , 2009, Fogg saw a neurologist, D r . Maureen
Hughes, for her dizzy spells. Fogg reported that the spells had
begun in the summer of 2008. She stated that she usually had
time to catch herself before falling, but noted that her ability
to drive was limited. A brain MRI conducted on January 2 9 ,
2009, revealed punctate white matter, which D r . Hughes reported
was a possible sign of vascular disease or demyelinating
disease. T r . 550. D r . Hughes planned cervical and lumbar MRIs
to determine if Fogg had a demyelinating disease. Id. The MRIs
were performed on February 1 3 , and D r . Hughes determined that
Fogg’s dizzy spells were “less likely” the result of
demyelinating disease, and more likely the result of vascular
disease. T r . 5 5 1 , 553, 557. D r . Hughes concluded that further
tests were not appropriate. T r . 557.
14 D. Administrative History
In her function report dated July 2 8 , 2008, Fogg described
her daily activities. T r . 285. She stated that she would wake
u p , take a shower, take her medication, and eat breakfast. Id.
She would then watch television. Id. Fogg would take the bus
to her appointment, and if she did not have appointments, she
would walk around her parking lot for half an hour and then take
a nap. Id. After her nap, Fogg would make and eat lunch and
load her dishwasher. Id. Then she would check her to-do list,
and list of things she needed. Id. She would then watch
television. Id.
Fogg also answered questions related to her ability to
accomplish typical daily tasks. T r . 286. She reported needing
pain medication to sleep and being forced to eat frozen dinners
because she could not stand long enough to cook more elaborate
meals. T r . 287. She also reported doing the dishes every day
and laundry twice a week on her own, and stated that she did not
drive because of her dizzy spells. T r . 2 8 7 , 288.
When asked to describe her abilities in functional terms,
Fogg reported that her back pain left her unable to lift more
than ten pounds. T r . 290. She also reported needing frequent
breaks of five to ten minutes. Id.
15 E. Administrative Proceedings
At the hearing, Fogg testified that her neck and lower back
pain limited her ability to lift, bend, and walk. To relieve
the pain, she had to spend three days per week lying down with
pillows behind her back. She claimed that her depression caused
her to cry a couple of times per week, diminished her
motivation, and made her unable to get out of bed one to two
times per week. She further reported that her stress
incontinence forced her to use the bathroom several times a day
and led to accidents twice a week that required her to change
her clothes. She admitted that physical therapy had helped, but
said that she often still experienced incontinence when she
coughed or sneezed, though sometimes without any trigger.
Although her dizziness used to occur daily and prevented
her from driving for two to three years, Fogg stated that she
could now drive and that the spells occurred infrequently. She
testified that she did not seek treatment of her back pain or
depression with D r . Richmond because she felt her dizzy spells
and renal failure were more pressing. She had not treated her
depression because she could not afford counseling.
A vocational expert also testified at the hearing. She
stated that Fogg’s past work as an electronics worker was
classified at the light exertional level. When asked if the
ability to do that job would be affected by the need for
16 frequent breaks, she answered that such a break would be
considered unscheduled and would likely lead to termination.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner. My
review is limited to determining whether the ALJ used “the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” Ward v . Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
so long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Ortiz v . Sec’y of Health and Human Servs., 955 F.2d 765, 769
(1st Cir. 1991) (per curiam) (quoting Rodriguez v . Sec’y of
Health and Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Ortiz, 955 F.2d at 770. Findings are
not conclusive, however, if they are derived by “ignoring
17 evidence, misapplying the law, or judging matters entrusted to
experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999).
The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §§
404.1520, 416.920. The applicant bears the burden, through the
first four steps, of proving that her impairments preclude her
from working. Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir.
2001). At the fifth step, the Commissioner determines whether
work that the claimant can d o , despite her impairments, exists
in significant numbers in the national economy and must produce
substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
Fogg contends that the Commissioner’s decision must be
reversed because (1) the ALJ failed to properly assess the
opinions of her medical providers; (2) the ALJ improperly
assessed her credibility; and (3) the ALJ’s decision is not
supported by substantial evidence. I address each challenge in
turn.
18 A. Assessment of Opinions of Medical Providers
In finding that Fogg retained the residual functional
capacity to perform light work, see 20 C.F.R. § 404.1567(b), the
ALJ relied primarily on the opinion of D r . Jaffe, the agency
physician who reviewed Fogg’s medical records. The ALJ gave
little weight to the opinions of her treating physicians, Drs.
Richmond and Kundu.
In determining whether a claimant is disabled, the ALJ must
review all of the relevant evidence, including opinion evidence
from providers. See 20 C.F.R. §§ 404.1527(b), 416.927(b);
Social Security Ruling 06-03p, 2006 WL 2329939, at *4 (Aug. 9,
2006) [hereinafter SSR 06-03p]. If any evidence in the record,
including medical source opinions, is inconsistent with other
evidence or is internally inconsistent, the ALJ must weigh all
of the evidence to determine whether the claimant is disabled.
20 C.F.R. § 404.1527(b). The opinions of treating physicians
are typically entitled to significant weight. See 20 C.F.R. §§
404.1502, 404.1527(C)(1). Fogg argues that the ALJ gave
inadequate weight to the opinions of Drs. Richmond and Kundu,
her treating physicians, and gave excessive weight to the
opinion of D r . Jaffe, an agency physician. I agree.
When determining the weight to be given to a physician’s
opinion, the ALJ should consider: the length of treatment &
frequency of examination, the nature and extent of treatment
19 relationship, the sufficiency of explanations with which the
physician supported his opinion, the extent to which the
physician presents relevant clinical and diagnostic evidence to
support his opinion, the consistency of the opinion, and whether
the physician specializes in medical conditions at issue. 20
C.F.R. § 404.1527(c)(2)-(6). The ALJ must provide “good
reasons” in his written decision for the weight given to an
opinion. Social Security Ruling 96-2p, 1996 WL 374188, at *5
[hereinafter SSR 96-2p].
Central to the divergence between D r . Richmond and D r .
Jaffe’s opinions, is the February 2009 MRI of Fogg’s lower back,
which revealed degenerative changes at L4-5. T r . 726.
Providers who had access to this study consistently opined that
the degenerative changes were causing Fogg’s pain. See, e.g.,
Tr. 6 1 0 , 623-24, 630. D r . Richmond was Fogg’s treating
physician, and the only physician to translate the MRI finding
into functional terms. Citing the 2009 MRI as support for his
medical source statement, D r . Richmond opined that Fogg could
not lift more than ten pounds; could not sit, stand, or walk for
more than four hours in an eight-hour workday; and could never
crouch, bend, kneel, crawl, stoop, or balance. The ALJ
explained that D r . Richmond’s opinion was entitled to little
weight because it was not supported by clinical observations.
Tr. 1 4 . Contrary to the ALJ’s conclusory reason for dismissing
20 Dr. Richmond’s opinion, the 2009 MRI is clinical evidence that
Dr. Richmond referenced as support for his opinion. The ALJ
fails to explain why the MRI does not provide objective support,
and does not provide another reason that would permit him to
discount a treating physician’s uncontroverted opinion.
Moreover, the ALJ erred in adopting D r . Jaffe’s opinion
without discussing the unavailability of the 2009 MRI to D r .
Jaffe, and the potential impact of that missing evidence. The
ALJ is entitled to weigh conflicting medical opinions, including
those of non-treating, non-examining, agency physicians. See 20
C.F.R. § 404.1527(c); Social Security Ruling 96-6p, 1996 WL
374180, at *2 [hereinafter SSR 96-6p]. When assigning weight to
non-treating sources, however, the ALJ must especially consider
“the degree to which they provide support for their opinions”
based on “all of the pertinent evidence.” 20 C.F.R. §
404.1527(c)(3).
The ALJ explained that D r . Jaffe’s opinion was entitled to
substantial weight because it was consistent with clinical
observations and Fogg’s self-reported activities. T r . 1 5 . In
his medical source statement dated October 1 7 , 2008, D r . Jaffe
opined that despite some limitations, Fogg retained the
functional ability necessary to perform light work. Tr. 531,
532. D r . Jaffe cited various treatment notes through September
2008 to support his position. T r . 537. In his decision to
21 assign substantial weight to D r . Jaffe’s opinion, however, the
ALJ failed to indicate the impact of the next two years of
record evidence, in particular the MRI that later formed the
basis of D r . Richmond’s opinion.
Because the ALJ’s rationale for discounting D r . Richmond’s
opinion in favor of D r . Jaffe’s opinion fails to account for the
impact of more recent medical evidence, the ALJ’s weighing of
medical sources is not supported by substantial evidence. Had
the ALJ adopted D r . Richmond’s opinion that Fogg could not lift
ten pounds frequently, and could not stand for more than four
hours in an eight-hour work day, she would be unable to perform
her prior work, which the vocational expert characterized as
“light work.” See Social Security Ruling 83-10, 1983 WL 31251,
at *5-6 [hereinafter SSR 83-10]. Because the ALJ’s improper
dismissal of Fogg’s treating physicians may therefore have
prejudiced Fogg’s claim, the case must be remanded for further
proceedings. In light of this result, I need not consider
Fogg’s additional arguments pertaining to the ALJ’s dismissal of
Dr. Kundu’s opinion.
B. Credibility Assessment
Fogg contends that the ALJ erroneously found her claims of
disabling pain not to be credible. I agree.
Symptoms such as pain can “sometimes suggest a greater
severity of impairment than can be shown by objective medical
22 evidence alone.” 20 C.F.R. §§ 404.1529(c), 416.929; Social
Security Ruling 96-7p, 1996 WL 374186, at *1 (July 2 , 1996)
[hereinafter SSR 96-7p]. An individual’s statements about his
symptoms of pain, however, are insufficient by themselves to
establish that an individual is disabled. SSR 96-7p at * 2 . In
evaluating symptoms such as pain, the ALJ must engage in a two-
step analysis. Id. First, he must consider whether the
claimant is suffering from “an underlying medically determinable
physical or mental impairment . . . that could reasonably be
expected to produce the individual’s pain or other symptoms.”
Id. If the claimant meets that threshold, the ALJ moves to the
second step where he
must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work activities. For this purposes, whenever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record.
Id.3
3 Fogg contends that I should adopt the interpretation of SSR 96- 7p advanced by some courts that the phrase “not substantiated by medical evidence” requires an initial determination that there is nothing, or little, in the record evidence to support an individual’s claim of pain. See, e.g., Caille v . Comm’r of Soc. Sec., 2010 WL 1424725, at *3 (D.P.R. 2010); Guziewicz v . Astrue, 23 Under the first step, the ALJ found that Fogg’s medically
determinable impairments could reasonably be expected to cause
the alleged symptoms. T r . at 1 4 . That finding is not
challenged. Under the second step, the ALJ found that Fogg’s
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the [ ] residual functional capacity
assessment.” Id. I cannot credit this argument because the ALJ
ignored relevant evidence and explanations in reaching his
credibility determination.
First, the ALJ erred in ignoring medical evidence that
contradicted his finding that Fogg’s statements were not
credible. The ALJ found significant that in February, March and
April of 2009, Fogg reported that her back pain had begun the
prior year. T r . 555, 6 3 0 , 652. The record reveals, however,
that Fogg had complained to other physicians about her back pain
on multiple occasions in 2006 and 2007. See, e.g., T r . 385,
2011 WL 128957, at *6 (D.N.H. 2011). Under that analysis, the ALJ would be forced to accept an individual’s report of persistence, intensity, and limitations, even if there was a significant amount of evidence in the record contradicting the report. I decline to read SSR 96-7p in that manner, because it is contrary to First Circuit precedent recognizing that an individual’s statements that are consistent with the record can permit a finding of disability only if the ALJ finds them credible. See Ortiz, 955 F.2d at 769 (finding that ALJ was entitled to determine claimant’s complaints of lower back pain were not credible despite ruptured disc at L5-S1 which could be expected to cause pain).
24 389, 3 9 1 , 4 2 7 , 436. In addition, the ALJ ignored M r . Plumley’s,
PA-C, treatment notes dated July 2006, noting that Fogg had been
evaluated “as far back as 2003 [ ] with the thought that there’s
likely a musculoskeletal component to her pain.” T r . 483. The
ALJ’s decision provides no rationale as to why isolated
statements in early 2009 are more persuasive than years of
treatment notes from various physicians.
In addition, the ALJ relied on M s . Brown’s clinical
observations that Fogg was able to sleep without difficulty and
had a non-antalgic gait. T r . 1 4 . The same treatment notes,
however, indicate M s . Brown’s ultimate recommendation that Fogg
consider numerous procedures to treat her pain, including a
medial branch block, radiofrequency ablation, steroid injection,
and a surgical consult. T r . 630. The ALJ failed to explain why
the normal clinical findings outweighed M s . Brown’s ultimate
determination that Fogg’s pain warranted more aggressive
treatment than medication.4
The ALJ’s second error was his failure to consider Fogg’s
explanations regarding her lack of complaints of back pain
following her visit to M s . Brown. T r . 1 4 . The ALJ used the
lack of complaints as support for his opinion that Fogg’s pain
4 Fogg’s counsel also contends that the ALJ improperly substituted his own medical opinion by citing M s . Brown’s observations that Fogg’s sleep was undisturbed and that she had a non-antalgic gait. In light of the outcome, I need not address that contention. 25 was not as intense, persistent, or limiting as she claimed. Id.
Before drawing “any inferences about an individual’s symptoms
and their functional effects from a failure to seek or pursue
regular medical treatment,” however, an ALJ must “consider[] any
explanations that the individual may provide.” SSR 96-7p at * 7 .
For example, “[t]he individual may have been advised that there
is no further, effective treatment that can be prescribed and
undertaken that would benefit the individual” or “[t]he
individual's daily activities may be structured so as to
minimize symptoms to a tolerable level or eliminate them
entirely.” Id. at * 8 .
Fogg contends that she was focused on her more urgent renal
condition following her visit with M s . Brown. Doc. N o . 8-1 at
1 3 , 1 6 . During her appointment with M s . Brown, Fogg was
informed that she should consider treatment options beyond pain
medication, such as medial branch block, radiofrequency
ablation, steroid injections, or a surgical consult. However,
M s . Brown noted that an aggressive treatment path was not
prudent until Fogg’s renal evaluation was complete. T r . 630.
Although the ALJ was entitled to find that the lack of options
was not sufficient to explain Fogg’s lack of complaints, there
26 is nothing to indicate that he considered it as a possible explanation.5
Because the ALJ ignored record evidence and failed to
consider possible explanations for Fogg’s failure to pursue
treatment for her back pain in 2010, his credibility findings
are not based on substantial evidence. Had the ALJ found that
Fogg’s back pain required her to recline frequently there would
be no work available for Fogg, according to a hypothetical asked
of the testifying vocational expert. T r . 5 0 . Because the ALJ’s
improper dismissal of Fogg’s subjective statements of pain may
therefore have prejudiced Fogg’s claim, the case must be
remanded for further proceedings. In light of this result, I
need not consider Fogg’s additional arguments pertaining to the
ALJ’s credibility determination of her depression, nor need I
consider the ALJ’s alleged failure to base his RFC on
substantial evidence.
IV. CONCLUSION
For the foregoing reasons, I grant Fogg’s motion to reverse
(Doc. N o . 8 ) , deny the Commissioner’s motion to affirm (Doc. N o .
1 0 ) , and pursuant to 42 U.S.C. 405(g), remand this case to the
5 The record does indicate that after Fogg’s renal evaluation was complete, she still did not seek further treatment for back pain because she was unable to obtain transportation. T r . 688. Again, the ALJ was entitled to find this explanation insufficient, but should have addressed i t .
27 Social Security Administration. The clerk is directed to enter
judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
July 6, 2012
cc: Elizabeth R. Jones, Esq. Robert J. Rabuck, Esq.