Laflamme v . SSA CV-07-122-PB 11/27/07
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tammy Laflamme
v. Civil N o . 07-cv-122-PB Opinion N o . 2007 DNH 142 Commissioner of Social Security
MEMORANDUM AND ORDER
Tammy Laflamme moves to reverse the Commissioner of Social
Security’s determination that she is not eligible for
Supplemental Security Income (“SSI”). Laflamme argues that the
Administrative Law Judge (“ALJ”) erred when he found that she is
not disabled and can perform sedentary work. For the reasons set
forth below, I conclude that the ALJ’s decision is supported by
substantial evidence. Therefore, I deny Laflamme’s motion to
reverse and grant the Commissioner’s motion to affirm.
I. BACKGROUND1
A. Procedural History
Laflamme received “adult child” disability benefits on the
1 The background information is drawn from the Joint Statement of Material Facts (Doc. N o . 12) submitted by the parties. Citations to the Administrative Record Transcript are indicated by “Tr.”. record of her father from 1987 to 1996, but the benefits were
terminated in 1996 when she married. T r . at 227-28. She applied
for SSI in October 2004 and July 2005, claiming that she was
unable to work because of scoliosis and arthritis. T r . at 39-44,
225. Laflamme’s SSI claims were denied and she sought review
before an ALJ. T r . at 3 0 . A hearing before ALJ Frederick Harap
was held on August 2 1 , 2006, where Laflamme was represented by
counsel. T r . at 222. On August 3 0 , 2006, ALJ Harap issued a
written decision applying the five-step sequential analysis from
20 C.F.R. § 416.920(a) and concluding that Laflamme is not
disabled within the meaning of the Social Security Act. T r . at
11.
Laflamme requested review of the hearing decision and her
attorney submitted a letter in support of the appeal. T r . at
219. The Appeals Council denied Laflamme’s request for review on
March 1 6 , 2007. T r . at 5 . Laflamme now brings this action,
seeking review of the agency’s final determination pursuant to 42
U.S.C. § 405(g).
B. Education and Work History
Tammy Laflamme (née Atwood) was born on May 5 , 1966. She
graduated from Berlin High School in Berlin, New Hampshire, at
-2- age 2 0 , having attended some mainstream classes and some special
education classes where she had individual instruction. T r . at
95. Laflamme has never held a job. T r . at 228.
C. Medical History
Laflamme was born with mild cerebral palsy and
kyphoscoliosis (lateral and posterior curvature of the spine).
Tr. at 114. At age three, Laflamme had tibial derotation
osteotomy surgery on both of her legs to correct the position of
her feet. T r . at 118. When she was a teenager, she also had
foot surgery for bunions and ankle surgery to correct subluxing
peroneal tendons. T r . at 118.
In 1986, when Laflamme was 20 years old, she had fusion
surgery to correct kyphoscoliosis, fusing her spine at T4-T12.
Tr. at 1 0 0 , 102-03, 109-10. As a result of the surgery, Laflamme
has a metal rod implanted in her back. T r . at 102. Laflamme did
not require ongoing medical treatment after recovering from the
surgery, but she did see the doctor who had been her spinal
surgeon in 1997, D r . Clark, complaining of back pain. T r . at
192-205. Laflamme began wearing a back brace, walking and doing
home exercises, and using over-the-counter pain remedies as
needed. T r . at 192-205. Laflamme and D r . Clark discussed other
-3- treatment possibilities including surgery and physical therapy,
but Laflamme stopped going to physical therapy and never had
additional surgery. T r . at 2 0 0 , 205. Laflamme saw D r . Paul
Urbanek for a second opinion in October 1998. D r . Urbanek
confirmed D r . Clark’s diagnosis and recommended stretching and
strengthening exercises and the use of non-steroidal anti-
inflammatory drugs. T r . at 203-04.
In 1999, Laflamme was in a car accident where she slightly
injured her neck. T r . at 148-49. Nevertheless, by 2001,
Laflamme’s medical records indicate that she was doing well and
that her back was stable. T r . at 147. At her 2003 checkup, she
complained of intermittent right hip pain, but no special
treatment was undertaken for this and she continued to walk for
exercise. T r . at 140. Laflamme slipped and fractured her ankle
in 2004; her fracture healed without any complications or
problems. T r . at 133, 135-36.
D. Application for SSI and Related Proceedings
1. 2004 Application
Laflamme first applied for SSI in October 2004. T r . at 5 4 .
She filled out an Activities of Daily Living statement where she
-4- reported that she requires help with some household chores such
as carrying groceries up to her third-floor apartment, lifting
heavy laundry baskets, and vacuuming. T r . at 54-58. Laflamme
also stated that she walks in the woods, walks to her mother’s
house, goes to church, goes shopping with her husband, reads, and
watches television. T r . at 54-58.
A Residual Functional Capacity (“RFC”) Assessment was
completed by Disability Adjudicator Linda Ellsworth on November
3 , 2004. T r . at 59-68. Ellsworth found that Laflamme could
occasionally lift 10 pounds, frequently lift 10 pounds, stand or
walk at least 2 hours in an 8-hour workday, and sit about 6 hours
in an 8-hour workday. Ellsworth also found that Laflamme could
only occasionally engage in climbing, balancing, stooping,
kneeling, crouching, or crawling, but had unlimited ability to
push and or pull and no manipulative, visual, communicative, or
environmental limitations. Ellsworth concluded that Laflamme had
an RFC for sedentary work. On November, 4 , 2004, Laflamme’s
claim for SSI was denied. T r . at 3 1 .
2. 2005 Application
Laflamme again applied for SSI in July 2005. She filled out
another Activities of Daily Living statement, providing
-5- substantially similar answers to the ones she had provided in
2004. T r . at 69-74 (see above description).
A second RFC Assessment was completed by Disability Examiner
Patty Skidmore on July 7 , 2005. T r . 75-83. Skidmore found that
Laflamme could occasionally lift 20 pounds, frequently lift 10
pounds, stand or walk about 6 hours in an 8-hour workday, and sit
about 6 hours in an 8-hour workday. Skidmore also found that
Laflamme had occasional postural limitations with
climbing, balancing, stooping, kneeling, crouching, and crawling,
but that Laflamme was unlimited in her ability to push or pull
and had no manipulative, visual, communicative, or environmental
limitations. Skidmore concluded that Laflamme had an RFC for
unskilled light work including work as a flagger, mail clerk, or
photocopy machine operator.
Dr. Gary Francke examined Laflamme in connection with her
claim for SSI on September 1 2 , 2005. T r . at 190-91. D r . Francke
concluded that Laflamme “does preserve the ability to do basic
work related activities such as sitting, standing, walking,
lifting, carrying, and bending. She does not like to lift heavy
weights and probably should be restricted from heavy lifting.”
-6- Tr. at 191. On September 2 6 , 2005, Laflamme’s claim for SSI was
denied. T r . at 3 5 .
3. Appeals Process
Laflamme retained Attorney Francis Jackson as her
representative on October 2 0 , 2005. T r . at 2 8 . Through her
attorney, Laflamme promptly requested a hearing to review the
denial of her SSI claim. T r . at 3 0 . In preparation for this
hearing, Laflamme reconnected with D r . Keith Shute, who had been
her primary care doctor but whom she had not seen since 2003.
Tr. at 212. D r . Shute conducted a disability evaluation on July
2 7 , 2006, at Laflamme’s request. T r . at 212-14.
In connection with the evaluation, D r . Shute filled out a
Medical Source Statement of Ability To Do Work-Related Activities
(Physical), where he stated that Laflamme could occasionally lift
10 pounds, frequently lift less than 10 pounds, stand for a
maximum of 30 minutes without needing to change position due to
back pain, sit for less than 6 hours in an 8-hour workday with
need to periodically alternate sitting and standing to relieve
pain or discomfort, occasionally kneel, and never climb, balance,
crouch, crawl, or stoop. T r . at 206-09. D r . Shute also noted
that Laflamme has occasional problems reaching, but no visual,
-7- communicative, attention, or concentration problems. T r . at 208.
Finally, D r . Shute noted that temperature extremes, vibration,
humidity/wetness, and environmental hazards could exacerbate
Laflamme’s back pain. T r . at 209.
Dr. Shute’s final conclusion was that Laflamme would be
unable to reliably and consistently perform sedentary light work
for 8 hours per day, five days per week. T r . at 209. He
recommended a functional capacity evaluation for a more detailed
assessment, but this evaluation was never completed. T r . at 1 4 ,
209.
D. The ALJ Decision
The hearing before ALJ Harap was held on August 2 1 , 2006, in
Littleton, New Hampshire. T r . at 222. Laflamme was represented
by counsel and the only two witnesses were Laflamme and her
mother, Maureen Atwood. T r . at 222-37.
ALJ Harap applied the following five-step sequential
evaluation process in determining whether or not Laflamme should
be considered disabled: (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
specific impairment listed in the SSA regulations and meets the
-8- duration requirement; (4) assessment of RFC and whether the
claimant can still do past relevant work; and (5) assessment of
claimant’s RFC, age, education, and work experience, to see if
claimant can make an adjustment to other work. 20 C.F.R. §
416.920(a). The burden of proof is on the claimant for the first
four steps of the evaluation, but, at the fifth step, the burden
is on the Commissioner to demonstrate that there are jobs in the
national economy that the claimant can perform. See, e.g.,
Freeman v . Barnhart, 274 F.3d 606, 608.
ALJ Harap concluded at step one that Laflamme had not
engaged in any substantial gainful activity as of the alleged
onset date (October 1 , 2004). T r . at 1 3 . He concluded at step
two that Laflamme’s scoliosis post-fusion surgery and mild
cerebral palsy are severe impairments within the meaning of 20
C.F.R. § 416.920(c). T r . at 1 3 . At step three, the ALJ found
that Laflamme has normal sensory, motor, and reflex function, is
able to walk without assistance, and demonstrates normal gait and
station. T r . at 1 4 . Therefore, the impairment did not meet the
SSA requirements described in step three. T r . at 1 4 ; see 20
C.F.R. § 416.920(a)(4)(iii). The ALJ concluded that Laflamme
retains the RFC to sit for at least 6 hours during the day,
-9- consistent with sedentary exertional activity, and to lift 10
pounds occasionally with occasional standing and walking. T r . at
14.
The ALJ found that while Laflamme’s impairments could
produce the symptoms that Laflamme was alleging, Laflamme’s
statements about the intensity, persistence, and limiting effects
of the symptoms were not credible. T r . at 1 4 . The ALJ placed
more weight on D r . Francke’s opinion than on D r . Shute’s opinion,
reasoning that the clinical observations and reports by both
doctors supported the conclusions of D r . Francke more than the
conclusions of D r . Shute. T r . at 1 4 . He noted that Laflamme has
an active daily life, is not under regular medical care, and
takes no prescription medication. T r . at 1 4 .
II. STANDARD OF REVIEW
I am authorized pursuant to 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the decision of the ALJ. My review is limited to
whether the ALJ used the proper legal standards and found facts
based upon the proper quantum of evidence. Ward v . Comm’r of
-10- Soc. Sec., 211 F.3d 6 5 2 , 655 (1st Cir. 2000); Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st Cir. 1999).
The ALJ’s findings of fact are accorded deference as long as
they are supported by substantial evidence. Ward, 211 F.3d at
655. The ALJ’s factual findings must be upheld “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 & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(quoting Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)). The ALJ’s factual findings are
conclusive if there is substantial evidence to support his or her
decision, even if the record “arguably could support a different
conclusion.” Id. at 770. The ALJ’s findings are not conclusive,
however, when they are derived by “ignoring evidence, misapplying
the law, or judging matters entrusted to experts.” Nguyen, 172
F.3d at 3 5 .
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 role of this
court, to resolve conflicts in the evidence. Id.
III. ANALYSIS
-11- Laflamme argues that the ALJ erred by: (1) improperly
interpreting raw medical evidence, (2) improperly rejecting the
opinion of D r . Shute, the treating physician, (3) failing to
discuss or assess the significance of certain limitations found
by D r . Shute, and (4) failing to properly develop the record and
make sufficient inquiry into the effects of Laflamme’s
impairments. Additionally, Laflamme argues that the ALJ erred in
failing to assess the severity of Laflamme’s mental impairments.
Each of Laflamme’s claims is addressed in turn.
A. Interpretation of Raw Medical Evidence
Plaintiff is correct that, ordinarily, an ALJ is not
qualified to interpret raw data from a medical record. See
Manso-Pizarro v . Sec’y of Health & Human Servs., 76 F.3d 1 5 , 17
(1st Cir. 1996). This does not mean, however, that medical data
must be diregarded entirely unless it is viewed through the lens
of expert testimony. “Of course, where the medical evidence
shows relatively little physical impairment, an ALJ permissibly
can render a commonsense judgment about functional capacity even
without a physician’s assessment.” Id.
In this case, there was ample evidence in the record to
support the ALJ’s common sense conclusion that Laflamme has the
-12- RFC to perform sedentary work. The ALJ’s conclusion is supported
by D r . Francke’s 2005 report and by the data contained in D r .
Shute’s reports from 2001 to 2006.
Laflamme’s medical records from 2001 until the present
demonstrate that her back was stable and required no intervention
or specialty doctor’s visit. See T r . at 138 (2003 annual exam),
142 (2002 annual exam), 147 (2001 two year follow-up). In her
Activities of Daily Living statements made in both 2004 and 2005,
Laflamme stated that she needed help with some household tasks
including carrying groceries up to their third-floor apartment,
vacuuming, and laundry, but that she walked for exercise in the
mornings and walked to her mother’s house often. See T r . at 54-
5 8 , 69-74. Laflamme stated that she was able to cook, go grocery
shopping with her husband, watch television, and go to church.
See T r . at 54-58, 69-74. Prior to her July 2006 appointment with
Dr. Shute in connection with her SSI claim, Laflamme had not been
under the regular care of a physician for nearly three years.
See T r . at 212. At that appointment, she stated to D r . Shute
that she walked 1-2 miles, 7 times per week.2 See T r . at 213.
2 There is some ambiguity in D r . Shute’s report as to Laflamme’s daily exercise. Under “Exercise per Week,” Shute
-13- Laflamme takes no medication for her back other than occasional
over-the-counter remedies and stated to D r . Shute at her July
2006 appointment that she did not desire a prescription for any
medication. T r . at 7 3 , 212.
Because the medical evidence in the record demonstrates
relatively little physical impairment, the ALJ did not err by
drawing his own conclusion about how Laflamme’s medical
impairments impact her functional capacity.
B. Improper Rejection of Treating Physician’s Conclusion
A “treating source” is a physician with whom the claimant
has an ongoing treatment relationship. 20 C.F.R. § 416.902. A
treating source may be a physician who has evaluated a claimaint
only a few times or only after long intervals, if that is typical
for treatment or evaluation of the claimant’s condition. Id. A
physician is not considered a “treating source,” however, if the
relationship is based solely on the need to obtain a report in
support of a disability claim. Id.
noted: “walk x7 1-2 miles.” T r . at 213. ALJ Harap interpreted Shute’s notation to mean that Laflamme walks seven and one-half miles each week, but I interpret the notation to indicate that she walks 1-2 miles seven times per week. The discrepancy is not significant to my conclusion.
-14- The Social Security Administration has determined that a
treating source’s medical opinion must be given controlling
weight if it is well-supported and not inconsistent with other
substantial evidence in the record. S.S.R. 96-2p (1996). It is
also true, however, that “[e]ven if a treating source’s medical
opinion is well-supported, controlling weight may not be given to
the opinion unless it is also ‘not inconsistent’ with the other
substantial evidence in the case record.” Id. Thus, the ALJ
must determine whether a medical opinion from a treating source
is both “well supported” and “not inconsistent” in a given case.
Id. As the SSA states:
Sometimes, there will be an obvious inconsistency between the opinion and the other substantial evidence; for example, when a treating source’s report contains an opinion that the individual is significantly limited in the ability to do work-related activities, but the opinion is inconsistent with the statements of the individual’s spouse about the individual’s actual activities, or when two medical sources provide inconsistent medical opinions about the same issue.
Id. at 3 .
The SSA also draws a distinction between medical source
statements and RFC assessments. Assessment of an individual’s
RFC is an issue that is reserved to the Commissioner. S.S.R. 96-
5p (1996). The relevant SSA policy interpretation states:
-15- “treating source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or special
significance.” Id. at 2 .
Dr. Shute stated in Laflamme’s medical record in July 2006
that he did not consider himself to be Laflamme’s treating
physician capable to render a medical opinion about her
functional limitations because he had not seen her since December
2003. T r . at 2 1 2 . Even if D r . Shute is considered a “treating
source,” his conclusion that Laflamme would be unable to reliably
and consistently perform sedentary or light work is inconsistent
with D r . Francke’s opinion and is arguably inconsistent with
Laflamme’s own statements about her capacity and D r . Shute’s own
recorded observations 2001-2003 and 2006. Therefore, D r . Shute’s
opinion is not entitled to controlling weight. See S.S.R. 96-2p
(1996). Additionally, the ultimate conclusion as to Laflamme’s
RFC must made by the ALJ, not the treating physician. See S.S.R.
96-5p (1996) at 4 . To permit such a conclusion to be drawn by a
treating physician “would be an abdication of the Commissioner’s
statutory responsibility to determine whether an individual is
disabled.” See id.
-16- C. Failure to Discuss or Assess Certain Limitations
Plaintiff correctly points out that the ALJ’s opinion failed
to discuss two types of limitations indicated by D r . Shute: 1)
that Laflamme needs to periodically alternate sitting and
standing to relieve pain and discomfort, and 2 ) that Laflamme
must never stoop. The fact that the ALJ did not explicitly
discuss these two points in his opinion does not mean, however,
that he failed to assess these limitations. The record contains
substantial evidence from which the ALJ could conclude that
Laflamme’s RFC was not significantly impacted by these alleged
limitations.
It is the ALJ’s duty to evaluate the credibility of
witnesses and resolve conflicts in the evidence. Ortiz, 955 F.2d
at 769. ALJ Harap determined that while Laflamme’s symptoms
could reasonably be considered the product of her impairment
(scoliosis post-surgery), “the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms
are not entirely credible.” T r . at 1 4 . As the ALJ noted,
Laflamme walks 1-2 miles every day for exercise, is not currently
taking medication, and is an active person: she attends church,
goes shopping, performs light housekeeping tasks, watches
-17- television, and visits with her mother daily. Thus, there was
substantial evidence to support the ALJ’s conclusion that
Laflamme has the ability to sit and stand as required for
sedentary work.
Dr. Shute’s conclusion regarding Laflamme’s inability to
“stoop” is contradicted by the 2004 and 2005 RFC assessments by
Ellsworth and Skidmore and by D r . Francke’s assessment that
Laflamme can bend and tilt sideways to touch her knee. See T r .
at 190-91. As discussed above, the ALJ was entitled to give more
weight to D r . Francke’s opinion than to D r . Shute’s.
D. Failure to Properly Develop the Record
Plaintiff argued that ALJ Harap erred by issuing his
decision without the benefit of medical or vocational testimony
at the hearing and without re-contacting D r . Shute. Plaintiff
also argues that the ALJ failed to properly develop the record by
inquiring further into the effects of Laflamme’s impairments on
her ability to work.
Prior to the hearing, the ALJ notified Laflamme that at the
hearing she could submit documents, present and question
witnesses, and present written statements about the facts and the
law. T r . at 2 3 . Laflamme was represented by counsel at the
-18- hearing, but only Laflamme herself and her mother (as a last-
minute addition) testified as witnesses. Laflamme could have
presented additional witnesses or evidence, but she did not.
Although the hearing was short and there were few witnesses,
there is substantial evidence in the record to support ALJ
Harap’s conclusion that Laflamme was not disabled.
Laflamme is correct that it is appropriate for an ALJ to re-
contact a treating source “if the evidence does not support a
treating source’s opinion on any issue reserved to the
Commissioner and the adjudicator cannot ascertain the basis of
the opinion from the case record....” S.S.R. 96-5p (1996) at 6.
In this case, D r . Shute did state the basis of his opinion: “My
opinion is based upon review of medical records, patient hx
[history], and PE [physical examination] today.” T r . at 209.
While the ALJ could have weighed the evidence in the record
differently to place more weight on D r . Shute’s opinion, there is
substantial evidence in the record to support the ALJ’s decision.
Therefore, I must uphold the ALJ’s decision. See Ortiz, 955 F.2d
at 770.
-19- E. Failure to Address Mental Impairments
Plaintiff also argues that the ALJ erred by failing to
assess the severity of her mental impairment. While the record
does show that Laflamme attended some special education classes
in high school, T r . at 9 5 , nothing in the record indicates that
Laflamme has a mental impairment that would indicate or
contribute to a disability. Laflamme is a high school graduate,
able to read, write, and communicate in English, and there is no
suggestion from any physician or report in the record that she
suffers from, as her brief suggests, “borderline intellectual
functioning.” It would not have been appropriate for the ALJ to
address mental impairment when the issue was never raised in any
of Laflamme’s applications for SSI or at the hearing. The
impairment is not apparent, and no significant impairment has
been noted in Laflamme’s medical records.
IV. CONCLUSION
For the reasons discussed above, plaintiff’s motion to
reverse (Doc. N o . 10) is denied and defendant’s motion to affirm
-20- (Doc. N o . 11) is granted. The Clerk shall enter judgment
accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
November 2 7 , 2007
cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. David M . Broderick, AUSA
-21-