Kristan Jean Mason v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration

2022 DNH 065

• Court: District Court, D. New Hampshire
• Decided: May 17, 2022
• Docket: 21-cv-455-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kristan Jean Mason

v. Civil No. 21-cv-455-SE Opinion No. 2022 DNH 065 Kilolo Kijakazi, Acting Commissioner, Social Security Administration

O R D E R

Kristan Jean Mason challenges the denial of her application

for disability insurance benefits pursuant to 42 U.S.C. §

405(g). Mason moves to reverse the Acting Commissioner’s

decision, arguing that the Administrative Law Judge (“ALJ”)

erred in determining her residual functional capacity. Doc. no.

10. Specifically, she contends that the ALJ erred by failing to

include in the residual functional capacity assessment a

limitation that Mason would need to miss multiple days of work

each month on or around the days she receives her monthly

treatment for her immune deficiency disorder. The Acting

Commissioner moves to affirm. Doc. no. 11. For the reasons

discussed below, the court grants the Acting Commissioner’s

motion to affirm and denies Mason’s motion to reverse.

STANDARD OF REVIEW

For purposes of review under § 405(g), the court “is

limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.”

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord

Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court

defers to the ALJ’s factual findings if they are supported by

substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148,

1153 (2019). Substantial evidence is “more than a mere

scintilla,” id., and exists, even if the record could support a

different conclusion, when “a reasonable mind, reviewing the

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

to support [the ALJ’s] conclusion,” Irlanda Ortiz v. Sec’y of

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis, “such that the answer

at each step determines whether progression to the next is

warranted.” Sacilowski, 959 F.3d at 433; 20 C.F.R. §

404.1520(a)(4). The claimant “has the burden of production and

proof at the first four steps of the process.” Sacilowski, 959

F.3d at 433. At the first three steps, the claimant must prove

that (1) she is not engaged in substantial gainful activity; (2)

she has a severe impairment; and (3) the impairment meets or

equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii).

2 If the claimant meets her burden at the first two steps of

the sequential analysis, but not at the third, the ALJ assesses

the claimant’s residual functional capacity (“RFC”) before

proceeding to Step Four. Id. § 404.1520(e). RFC measures the

maximum amount a person can do in a work setting despite the

limitations caused by her impairments. Id. § 404.1545(a)(1). At

Step Four, the claimant must establish that her RFC is

insufficient to perform any of her past relevant work. Id.

§ 404.1520(a)(4)(iv). If the claimant can perform her past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform her past relevant work, the ALJ proceeds to Step Five,

in which the Social Security Administration has the burden of

showing that jobs exist in the economy which the claimant can do

in light of the RFC assessment as well as the claimant’s age,

education, and work experience. See id. § 404.1520(a)(4)(v). If

such jobs exist, the claimant is not disabled. Id. If they do

not, she is disabled. Id.

BACKGROUND

A detailed factual background can be found in Mason’s

statement of material facts (doc. no. 10-1) as supplemented by

the Acting Commissioner’s statement of facts (doc. no. 12) and

3 in the administrative record (doc. no. 8). The court provides a

brief summary of the case here.

I. First Claim for Disability Benefits

Mason filed her first application for disability insurance

benefits on May 12, 2014, alleging a disability beginning on

February 17, 2014. She claimed a disability due to respiratory

impairment, immune deficiency disorder, affective disorder, and

anxiety.

After the Social Security Administration denied Mason’s

claim at the initial level, she requested a hearing in front of

an ALJ. During the hearing, which was held on April 28, 2016,

Mason requested a closed period of disability from February 17,

2014, through April 14, 2015.

On June 15, 2016, the ALJ issued his decision, finding that

Mason was disabled and entitled to benefits through the closed

period. The ALJ noted that on April 15, 2015, the date Mason’s

disability ended, she returned to full-time work with no

significant medical limitations.

II. Second Claim for Disability Benefits

On August 21, 2018, Mason filed a second application for

disability insurance benefits. Mason alleged a disability

4 beginning on August 1, 2017, due to migraines, sinus problems,

mental health issues, lower back pain, and arthritis.

The Social Security Administration denied Mason’s

application at the initial level. Mason then requested a hearing

in front of an ALJ. On June 1, 2020, the ALJ held a telephonic

hearing, during which Mason testified and was represented by an

attorney.

On July 6, 2020, the ALJ issued an unfavorable decision.

Under Step One and Step Two, she found that Mason had not

engaged in substantial gainful activity since the onset date of

her impairments and that Mason had the following severe

impairments: recurrent sinusitis, immune deficiency disorder,

anxiety, Barrett’s esophagitis, and reactive airway disease.

Under Step Three, the ALJ found that none of Mason’s impairments

met or equaled the criteria of any listed impairment. After

reviewing the evidence in the record, including medical-opinion

evidence and Mason’s testimony, the ALJ determined that Mason

had the RFC to perform light work except she could only:

occasionally climb ramps, stairs, ladders, ropes, and scaffolds; occasionally stoop, kneel, crouch, and crawl. The claimant must avoid concentrated exposure to temperature extremes; must avoid moderate exposure to respiratory irritants; and was limited to a work environment with a moderate noise level per the SCO. The claimant could sustain attention and focus well enough to complete simple tasks for 2 hour periods over an eight hour workday with normal breaks. The claimant could perform work that required no more than

5 occasional interaction with supervisors and co- workers, no team or tandem work, and no more than brief interaction with the general public, with no requirement for intense social demands.

Admin. Rec. at 128.

Relevant to Mason’s argument in this case, the ALJ’s RFC

assessment does not include a limitation concerning Mason’s need

to be absent from work on the days surrounding her immune-

deficiency-disorder treatments. Approximately once a month,

Mason receives an intravenous immune globulin (“IVIG”) infusion

to increase her antibodies and help her fight infections. Mason

testified at the hearing that the IVIG infusions, which she

usually receives on Wednesdays, took approximately five or six

hours to complete. She also testified, and her medical records

support, that the infusions generally improved her overall

health and symptoms.

Mason also testified, however, that she began to feel

weaker, more fatigued, and confused approximately two to four

days before each infusion, as the effects of her prior infusion

gradually wore off. She further testified that it often takes

her one or two days after the infusion to start feeling better.

The ALJ’s RFC assessment does not include any limitation

regarding Mason’s symptoms on or around the day that she

receives the infusion, including that Mason may need to be

absent from work because of those symptoms.

6 In response to hypothetical questions posed by the ALJ, the

vocational expert, Michele Erbacher, testified that a person

with Mason’s age, education, past work experience, and RFC (as

assessed by the ALJ) could not perform Mason’s past work, but

could perform the job duties of occupations existing in

significant numbers in the national economy. These occupations

included merchandise maker, routing clerk, and mail clerk. Based

on the ALJ’s RFC assessment and Erbacher’s testimony, the ALJ

found at Step Four of the sequential process that Mason could

not perform any past relevant work, but at Step Five that Mason

could perform other jobs and was not disabled.

Although not included in the ALJ’s RFC assessment, Erbacher

testified that employers in the occupations she identified would

tolerate an employee missing one day per month. She also stated:

“And a worker who is absent two or more days per month is

terminated for being unreliable if they do not correct this rate

of absenteeism.” Admin. Rec. at 78.

The Appeals Council granted Mason’s request for review. On

March 24, 2021, the Appeals Council determined that Mason met

the Social Security Administration’s insured status requirement

through December 31, 2019, not June 30, 2019, as the ALJ had

7 found in her decision.1 The Appeals Council adopted the ALJ’s

other findings. Admin. Rec. at 8-11. This action followed.2

DISCUSSION

Mason argues that the ALJ erred in her RFC assessment.

Specifically, Mason contends that the ALJ should have included a

limitation concerning her need to be absent from work on

multiple days per month around the time she receives her

infusion. She also argues that the ALJ failed to address and

specifically reject the applicability of that limitation. The

Acting Commissioner disputes both arguments.

A claimant’s RFC is “the most [the claimant] can still do

despite her limitations.” 20 C.F.R. § 404.1545(a)(1). It must be

crafted by an ALJ based on all relevant evidence in the record.

Id. This includes the objective medical evidence, an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms, statements and other information

1 Mason’s final date of insured status is not relevant to her motion to reverse in this case.

2 Because the Appeals Council granted Mason’s request for review, the Appeals Council’s decision is the Acting Commissioner’s final decision. 20 C.F.R. § 422.210(a); see Sims v. Apfel, 530 U.S. 103, 107 (2000). The Appeals Council adopted the ALJ’s decision in all respects other than Mason’s insured status date. Therefore, the court will reference the ALJ’s findings in her decision when discussing Mason’s arguments.

8 provided by medical sources and other persons, and any other

relevant evidence in the individual’s case record. See 20 C.F.R.

§ 404.1529(c)(3).

The parties agree that there is no medical opinion evidence

in the record regarding Mason’s need to be absent from work on

the days surrounding her infusion. Rather, Mason contends that

the ALJ was required, but failed, to address adequately her

testimony concerning her symptoms around her infusion date. The

court disagrees.

The ALJ discussed Mason’s testimony regarding her infusion

and surrounding symptoms in the decision:

The claimant testified that she receives monthly infusions administered by a nurse. An infusion takes about five to six hours to administer once a month. The few days prior to her infusion she experiences fatigue and fogginess. After her infusion, she stated that she stays close to her house and rests the following day. It takes about one to two days for her body to recharge after the infusion.

Admin. Rec. at 129. She subsequently found that Mason’s

statements concerning the intensity, persistence, and limiting

effects of her symptoms on the days around the infusion were not

entirely consistent with the medical evidence and other evidence

in the record.

In making that finding, the ALJ referenced medical records

and Mason’s statements to medical providers concerning her

levels of daily activity and her symptoms on the days

9 surrounding her infusions. For example, the ALJ discussed

several medical records from 2019 on days immediately before

Mason’s infusions, describing normal physical and mental exams,

with no indications of lethargy or decreased alertness. Admin.

Rec. at 130. She also discussed medical records from 2018 and

2019 on days following Mason’s infusions in which medical

providers reported similar results. Id. at 129-30. In addition,

the ALJ discussed a November 2019 doctor’s visit during which

Mason sought treatment for a headache and fever. Id. at 130.

During that visit, Mason mentioned feeling body aches and

fatigue, but stated that those symptoms were much worse than she

usually has on the day following an infusion. Id. Based on

Mason’s statements in these medical records and her providers’

reports, the ALJ found Mason’s statements concerning her

symptoms on the days surrounding her infusions to be

inconsistent with other evidence in the record.

Mason contends that the ALJ’s discussion of her symptoms

around the day of her infusion is insufficient, because it is

merely “the ALJ reciting medical findings, which is an

occurrence in every such Administrative decision.” Doc. no. 13

at 1. That is not the case. Although the ALJ’s discussion of

Mason’s complaints regarding the time period surrounding her

infusion could have been more focused, the ALJ addressed Mason’s

10 complaints regarding her pre- and post-infusion symptoms and

explained why she found them inconsistent with other evidence in

the record. Thus, Mason’s complaint regarding the ALJ’s

discussion of those symptoms is not a sufficient basis to

reverse. See, e.g., Gill v. Colvin, No. 13-1792, 2014 WL

12906901, at *3 (1st Cir. Apr. 9, 2014) (holding that remand is

not required even where “the ALJ’s opinion could have been more

explicit in her explanation”); Egan v. Astrue, No. 11-CV-147-JL,

2012 WL 274483, at *6 (D.N.H. Jan. 31, 2012) (granting the

Commissioner’s motion to affirm, noting that “although the ALJ’s

discussion could have been better developed, it was not so

lacking as to warrant a remand”).

A reasonable mind might accept as adequate the evidence

supporting the ALJ’s conclusion. Therefore, the ALJ’s decision

is supported by substantial evidence, and the court must affirm

the decision even if the record could support a different

conclusion. See, e.g., Gorham v. Saul, No. 18-cv-853-SM, 2019 WL

3562689, at *4 (D.N.H. Aug. 6, 2019) (“Provided the ALJ’s

findings are properly supported by substantial evidence, 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.”).

11 As a final matter, the court notes that the parties dispute

whether the ALJ should have addressed whether Mason would need

to miss at least one day of work per month to account for the

time needed to administer her infusion. Mason testified that her

infusion takes five to six hours to complete, effectively making

it impossible for her to work for at least one day per month.

The Acting Commissioner cites Mason’s statement in one of her

medical records that her infusion takes three-and-a-half hours

to complete only, and that nothing in the record suggests that

the infusion must be completed during the workweek.

The court need not decide whether the ALJ should have

specifically addressed if Mason would need to miss work on the

day that she receives her infusion. The vocational expert

testified that each of the occupations listed in the ALJ’s

finding at Step Five would allow for an employee to miss one day

of work per month. Therefore, even if the ALJ should have

specifically addressed whether Mason needed to be absent from

work on the day of her infusion, the ALJ’s failure to do so

amounts to harmless error. See Ward v. Comm’r of Soc. Sec., 211

F.3d 652, 656 (1st Cir. 2000).

12 CONCLUSION

For the foregoing reasons, Mason’s motion to reverse (doc.

no. 10) is denied. The Acting Commissioner’s motion to affirm

(doc. no. 11) is granted. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge

May 17, 2022

cc: Counsel of Record.