UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy MacKenzie
v. Civil No. 15-cv-198-JD Opinion No. 2016 DNH 034 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Timothy MacKenzie seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying his application for
disability insurance benefits and supplemental security income.
In support of his motion to reverse, MacKenzie contends that the
Administrative Law Judge (“ALJ”) erred in assessing his residual
functional capacity, which resulted in an erroneous
determination that he was not disabled. The Acting Commissioner
moves to affirm the decision.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, 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 Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial
evidence. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background
In this district, parties in a social security case are
required to prepare and file a joint statement of material facts
that “describe[s] all facts pertinent to the decision of the
case and all significant procedural developments, and define[s]
all medical terms.” LR 9.1(c) & (e). Therefore, the background
facts are summarized from the parties’ joint statement of
material facts.1
MacKenzie applied for social security benefits in September
of 2012, alleging that he had been disabled since November 12,
2008. He was thirty-three years old when he filed his
application. Although he left school after the ninth grade,
MacKenzie then earned a high school equivalency diploma, known
as a GED.
In December of 2012, Dr. Matthew Masewic did a consultative
1 Although the ALJ refers to other record evidence in his decision, the parties did not describe that evidence in their joint statement.
2 orthopedic examination of MacKenzie. Dr. Masewic found that
MacKenzie had some degenerative disk disease in his neck,
greater on the right side, but noted that he was not able to do
a complete examination because MacKenzie would not allow it,
claiming pain. Dr. Masewic concluded that the functional issues
and pain MacKenzie complained of were not related to his neck
and that either MacKenzie was embellishing his symptoms or he
had another disorder that had not been diagnosed. In functional
terms, Dr. Masewic found that MacKenzie’s degenerative disk
disease had a mild to moderate effect on his functional capacity
and that his lower back pain, which could not be properly
examined, would also have a mild to moderate effect on his
functional capacity.
Dr. Masewic noted that MacKenzie had a greater range of
motion while in his office than he demonstrated during the
physical examination and that MacKenzie’s complaints of pain
were out of proportion to his ability to walk, lie down, and sit
in a chair. Dr. Masewic also noted significant discrepancies
between MacKenzie’s reports of impairment and his demonstrated
abilities. For example, while MacKenzie claimed a loss of
sensation and weak grip strength in his hands, those impairments
were inconsistent with a lack of atrophy in his hands, with
normal dexterity, and his ability to pick things up and use his
right hand to get off the examination table. Dr. Masewic wrote
3 that MacKenzie’s story about having to tape a hammer to his hand
to use it was “preposterous”. MacKenzie also displayed a
protected and broad-based gait that Dr. Masewic found “strange”
because his neck issues would not affect his gait.
State agency psychologist Laura Landerman, Ph.D., reviewed
MacKenzie’s records in January of 2013. Dr. Landerman concluded
that MacKenzie had moderate difficulty in maintaining social
functioning. She also found that MacKenzie was at most
moderately limited in his ability to interact with supervisors.
In November of 2013, MacKenzie’s physical therapist, Rachel
Heath, completed two forms for MacKenzie, a “Medical Source
Statement of Ability to Do Work-Related Activities” and a “Rehab
Report: Evaluation Summary with Functional Assessment.” The
Rehab Report was also signed by MacKenzie’s primary care
physician, Dr. Christopher Allen. On both forms, Heath
indicated that MacKenzie was limited in his ability to do
manipulative activities, such as fine motor tasks, reaching,
fingering, and handling, which he could do occasionally. Heath
noted, however, that MacKenzie used less than maximum effort
during the testing and that he demonstrated a “minor discrepancy
in level of consistency to the reliability and accuracy of pain
and disability.”
The hearing on MacKenzie’s application was held on January
14, 2014. MacKenzie testified that he was currently homeless,
4 living in a tent in the woods, and that he worked part time for
friends doing jobs like picking up brush and sticks to make fire
piles and keeping their job sites neat. He also testified that
he was taking 15 milligrams of Oxycontin eight times a day in
order to be able to get up and move around and that on some days
he stayed in bed all day covered in heating pads and crying. He
said that his arms and hands were completely numb and that he
suffered from severe migraine headaches.
A vocational expert participated in the hearing by
telephone. The ALJ posed a hypothetical to the vocational
expert of a person limited to light work with certain postural
limitations and restrictions in the work setting. The
vocational expert testified that such a person could do jobs as
a price marker, mail sorter, and collator operator. MacKenzie’s
counsel asked the vocational expert to add the physical
limitations that MacKenzie’s physical therapist indicated in her
Medical Source Statement. In response, the vocational expert
said that person could work as a surveillance-system monitor and
a callout operator.
The ALJ issued a decision on January 24, 2014, finding that
MacKenzie was not disabled. The Appeals Council denied
MacKenzie’s request for review, making the ALJ’s decision the
final decision of the Acting Commissioner.
5 Discussion
MacKenzie contends that the ALJ’s residual functional
capacity assessment is not supported by the record evidence.
MacKenzie further contends that because of the alleged errors in
the residual functional capacity assessment, the finding that
jobs existed which MacKenzie could do was also error, requiring
that the decision be reversed. The Acting Commissioner moves to
affirm, arguing that any error in the physical residual
functional capacity assessment was harmless because of the
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy MacKenzie
v. Civil No. 15-cv-198-JD Opinion No. 2016 DNH 034 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Timothy MacKenzie seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying his application for
disability insurance benefits and supplemental security income.
In support of his motion to reverse, MacKenzie contends that the
Administrative Law Judge (“ALJ”) erred in assessing his residual
functional capacity, which resulted in an erroneous
determination that he was not disabled. The Acting Commissioner
moves to affirm the decision.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, 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 Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial
evidence. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background
In this district, parties in a social security case are
required to prepare and file a joint statement of material facts
that “describe[s] all facts pertinent to the decision of the
case and all significant procedural developments, and define[s]
all medical terms.” LR 9.1(c) & (e). Therefore, the background
facts are summarized from the parties’ joint statement of
material facts.1
MacKenzie applied for social security benefits in September
of 2012, alleging that he had been disabled since November 12,
2008. He was thirty-three years old when he filed his
application. Although he left school after the ninth grade,
MacKenzie then earned a high school equivalency diploma, known
as a GED.
In December of 2012, Dr. Matthew Masewic did a consultative
1 Although the ALJ refers to other record evidence in his decision, the parties did not describe that evidence in their joint statement.
2 orthopedic examination of MacKenzie. Dr. Masewic found that
MacKenzie had some degenerative disk disease in his neck,
greater on the right side, but noted that he was not able to do
a complete examination because MacKenzie would not allow it,
claiming pain. Dr. Masewic concluded that the functional issues
and pain MacKenzie complained of were not related to his neck
and that either MacKenzie was embellishing his symptoms or he
had another disorder that had not been diagnosed. In functional
terms, Dr. Masewic found that MacKenzie’s degenerative disk
disease had a mild to moderate effect on his functional capacity
and that his lower back pain, which could not be properly
examined, would also have a mild to moderate effect on his
functional capacity.
Dr. Masewic noted that MacKenzie had a greater range of
motion while in his office than he demonstrated during the
physical examination and that MacKenzie’s complaints of pain
were out of proportion to his ability to walk, lie down, and sit
in a chair. Dr. Masewic also noted significant discrepancies
between MacKenzie’s reports of impairment and his demonstrated
abilities. For example, while MacKenzie claimed a loss of
sensation and weak grip strength in his hands, those impairments
were inconsistent with a lack of atrophy in his hands, with
normal dexterity, and his ability to pick things up and use his
right hand to get off the examination table. Dr. Masewic wrote
3 that MacKenzie’s story about having to tape a hammer to his hand
to use it was “preposterous”. MacKenzie also displayed a
protected and broad-based gait that Dr. Masewic found “strange”
because his neck issues would not affect his gait.
State agency psychologist Laura Landerman, Ph.D., reviewed
MacKenzie’s records in January of 2013. Dr. Landerman concluded
that MacKenzie had moderate difficulty in maintaining social
functioning. She also found that MacKenzie was at most
moderately limited in his ability to interact with supervisors.
In November of 2013, MacKenzie’s physical therapist, Rachel
Heath, completed two forms for MacKenzie, a “Medical Source
Statement of Ability to Do Work-Related Activities” and a “Rehab
Report: Evaluation Summary with Functional Assessment.” The
Rehab Report was also signed by MacKenzie’s primary care
physician, Dr. Christopher Allen. On both forms, Heath
indicated that MacKenzie was limited in his ability to do
manipulative activities, such as fine motor tasks, reaching,
fingering, and handling, which he could do occasionally. Heath
noted, however, that MacKenzie used less than maximum effort
during the testing and that he demonstrated a “minor discrepancy
in level of consistency to the reliability and accuracy of pain
and disability.”
The hearing on MacKenzie’s application was held on January
14, 2014. MacKenzie testified that he was currently homeless,
4 living in a tent in the woods, and that he worked part time for
friends doing jobs like picking up brush and sticks to make fire
piles and keeping their job sites neat. He also testified that
he was taking 15 milligrams of Oxycontin eight times a day in
order to be able to get up and move around and that on some days
he stayed in bed all day covered in heating pads and crying. He
said that his arms and hands were completely numb and that he
suffered from severe migraine headaches.
A vocational expert participated in the hearing by
telephone. The ALJ posed a hypothetical to the vocational
expert of a person limited to light work with certain postural
limitations and restrictions in the work setting. The
vocational expert testified that such a person could do jobs as
a price marker, mail sorter, and collator operator. MacKenzie’s
counsel asked the vocational expert to add the physical
limitations that MacKenzie’s physical therapist indicated in her
Medical Source Statement. In response, the vocational expert
said that person could work as a surveillance-system monitor and
a callout operator.
The ALJ issued a decision on January 24, 2014, finding that
MacKenzie was not disabled. The Appeals Council denied
MacKenzie’s request for review, making the ALJ’s decision the
final decision of the Acting Commissioner.
5 Discussion
MacKenzie contends that the ALJ’s residual functional
capacity assessment is not supported by the record evidence.
MacKenzie further contends that because of the alleged errors in
the residual functional capacity assessment, the finding that
jobs existed which MacKenzie could do was also error, requiring
that the decision be reversed. The Acting Commissioner moves to
affirm, arguing that any error in the physical residual
functional capacity assessment was harmless because of the
hypotheticals posed to the vocational expert and that the ALJ
properly considered Dr. Landerman’s opinion in assessing
MacKenzie’s psychological impairments.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. §§ 404.1520 and 416.920.2 The
claimant bears the burden through the first four steps of
proving that his impairments preclude him from working. Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
step, the Acting Commissioner has the burden of showing that
2 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).
6 jobs exist which the claimant can do. Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
A. Residual Functional Capacity
In assessing a claimant’s residual functional capacity, the
ALJ determines “the most [the claimant] can do despite [his]
limitations . . . based on all the relevant evidence in [the]
case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ found that
MacKenzie was physically able to do work at the light exertional
level, with postural restrictions. The ALJ also addressed
MacKenzie’s psychological limitations by restricting him to
unskilled work in a low stress environment and requiring that he
“avoid all social interaction with the general public” and have
only “brief and superficial social interaction with coworkers
and supervisors.”
1. Headaches
MacKenzie states briefly that the ALJ erred in failing to
find that his headaches were a severe impairment at Step Two and
in failing to consider his headaches in assessing residual
functional capacity. The Acting Commissioner contends that
MacKenzie did not sufficiently develop this issue to allow
review. The court agrees.
The parties’ joint factual statement, which must include
all of the facts that are pertinent to the decision, does not
7 mention headaches. The ALJ addressed the issue of headaches at
Step Two and did not find a severe limitation because MacKenzie
had not previously alleged headaches and because of the lack of
medical records showing treatment for headaches. In his
memorandum, MacKenzie cites twenty or more pages of the
administrative record to show that his headaches were severe
without explaining what the records demonstrated in support of
his claim.3
As such, MacKenzie has not shown any error by the ALJ in
failing to find that his headaches constituted a severe
impairment at Step Two and failing to consider headaches for
purposes of the residual functional capacity assessment.
2. Physical Capacity
MacKenzie contends that the ALJ erred because there is no
opinion in the record that provides a functional capacity
assessment for light work. He argues that the ALJ should have
credited his physical therapist’s assessment, adopted by Dr.
Allen, that he was limited to sedentary work with additional
limitations, including only occasionally being able to do
manipulative activities. In response, the Acting Commissioner
3 The cited records appear to pertain to treatments for MacKenzie’s neck pain, not headaches. Although headache is mentioned, there is no evidence of the severity or effects of the headaches.
8 labels MacKenzie’s argument a “red herring” because MacKenzie’s
counsel asked the vocational expert a question with the physical
therapist’s more restricted assessment and the vocational expert
identified jobs that could be done with those limitations.
Before determining the exertional level of work a claimant
can do in a residual functional capacity assessment, an ALJ
“must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a
function-by-function basis.” Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996
WL 374184 (July 2, 1996). Nevertheless, an ALJ’s failure to
assess all functional limitations, as required by SSR 96-8p, is
harmless if the functional assessment is provided in the record.
See Beaune v. Colvin, 2015 WL 4205251, at *3, 2015 DNH 136
(D.N.H. July 10, 2015); Dunning v. Colvin, 2015 WL 4139618, at
*5 (D. Me. July 9, 2015). Generally, an ALJ is not qualified to
interpret medical records in functional terms and must rely on
an evaluation done by a physician or another qualified expert.
Nguyen, 172 F.3d at 35.
In making his residual functional capacity assessment, the
ALJ gave great weight to Dr. Masewic’s opinion but also
acknowledged that Dr. Masewic did not provide a function by
function assessment. The record does not include a functional
9 capacity assessment that supports the ALJ’s findings.4
Therefore, the ALJ’s residual functional capacity assessment is
not supported by substantial evidence in the record.
3. Psychological Limitations
MacKenzie charges that the ALJ’s residual functional
capacity assessment was also inaccurate because it omitted the
limitation found by Dr. Landerman that MacKenzie would have to
work in an environment with a “non critical supervisor.” The
Acting Commissioner contends that this alleged error amounts to
an assertion that “the ALJ did not properly account for three
words” in Dr. Landerman’s opinion and argues that the “three
words . . . are so ambiguous that the ALJ could not possibly
have adopted them.” The Acting Commissioner further contends
that substantial evidence supports the ALJ’s omission of that
limitation.
Dr. Landerman indicated that MacKenzie’s psychological
limitations would cause, at most, moderate limitations in his
ability to function in a work environment as long as he had had
limited social interaction and a non-critical supervisor. The
ALJ gave significant weight to Dr. Landerman’s opinion. The
4 This case presents a troubling situation in which it appears that MacKenzie so embellished or exaggerated his symptoms and impairments that an accurate functional assessment was difficult if not impossible.
10 ALJ’s assessment that MacKenzie retained the functional capacity
to do unskilled work, in a low stress environment, and with
limited interaction with the public, coworkers, and supervisors
was based on that opinion. The ALJ, however, did not include
the limitation that MacKenzie would need to have a non-critical
supervisor.
Dr. Landerman’s opinion that MacKenzie could function in a
work setting was predicated on the requirement that he work in
an environment with a non-critical supervisor. Without that
limitation, Dr. Landerman’s opinion does not support the ALJ’s
residual functional capacity assessment. The record does not
include another opinion that MacKenzie could work despite his
mental and psychological limitations.
The ALJ did not explain why he omitted the requirement of a
non-critical supervisor. Although the Acting Commissioner now
attempts to explain the omission, the ALJ did not provide that
explanation. Post hoc rationalization cannot be considered in
support of the ALJ’s decision, as review is generally limited to
the reasons provided by the ALJ in the decision. See SEC v.
Chenery, 332 U.S. 194 (1947); Graves v. Colvin, 2016 WL 270382,
at *7, n.4 (D. Mass. Jan. 21, 2016); Van Blarcom v. Astrue, 2011
WL 2118643, at *4 n.2 & 4 (D.N.H. May 25, 2011). The Acting
Commissioner has not shown that an exception to the Chenery rule
11 applies here. See Desjardins v. Colvin, 2015 WL 4496430, at *8
(D. Me. July 23, 2015).
Therefore, the ALJ did not properly assess MacKenzie’s
psychological limitations for purposes of the residual
functional capacity assessment.
B. Step Five – Disability Determination
At Step Five, a vocational expert’s opinions about jobs
provides substantial evidence to support the ALJ’s disability
determination if the opinions are based on hypothetical
questions that accurately reflect the claimant’s limitations.
See Perez v. Sec’y of Health & Human Servs., 958 F.2d 445, 447
(1st Cir. 1991); Otero v. Colvin, 2015 WL 5089810, at *6 (D.N.H.
Aug. 27, 2015).
Although the ALJ’s hypothetical to the vocational expert
was not based on a physical functional assessment in the record,
as is required, MacKenzie’s counsel provided a hypothetical
based on the physical therapist’s functional capacity
assessment. In response, the vocational expert testified that
even with those physical limitations there were jobs the
claimant could do. Therefore, the ALJ’s error was harmless.
The ALJ’s failure to incorporate the non-critical
supervisor limitation, however, was not corrected. Because Dr.
Landerman’s opinion about MacKenzie’s ability to function in a
12 work environment required a non-critical supervisor and no other
opinion supports the ALJ’s residual functional capacity
assessment, the omission of that limitation is not harmless. As
a result, the ALJ’s hypothetical question to the vocational
expert did not accurately reflect MacKenzie’s limitations, as
found by Dr. Landerman, and the vocational expert’s testimony
did not provide substantial evidence to support the decision.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 9) is granted. The Acting
Commissioner’s motion to affirm (document no. 14) is denied.
The decision of the Acting Commissioner is reversed, and
the case is remanded under Sentence Four for further
proceedings.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
February 23, 2016
cc: Penelope E. Gronbeck, Esq. T. David Plourde, Esq.