UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl McLaughlin
v. Civil No. 14-cv-154-LM Opinion No. 2015 DNH 114 Carolyn Colvin, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Cheryl McLaughlin moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423. The
Acting Commissioner, in turn, moves for an order affirming her
decision. For the reasons that follow, the matter is remanded
to the Acting Commissioner for further proceedings consistent
with this order.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .
42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490
U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Commissioner] to determine issues of credibility and to draw
inferences from the record evidence. Indeed, the resolution of
conflicts in the evidence is for the [Commissioner], not the
2 courts.” Irlanda Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st
Cir. 1991) (citations omitted). Moreover, the court “must
uphold the [Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.” Tsarelka v. Sec’y of HHS,
842 F.2d 529, 535 (1st Cir. 1988). Finally, when determining
whether a decision of the Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
Background
The parties have submitted a Joint Statement of Material
Facts, document no. 11. That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
In April of 2010, McLaughlin underwent arthroscopic surgery
on her right shoulder that addressed several different physical
conditions including a damaged rotator cuff. Thereafter, she
was prescribed some pain medication and went through physical
therapy. Ultimately, she was cleared for full work duty, and
returned to her position as a supermarket cashier.
3 In October of 2010, McLaughlin began complaining of hip and
back pain. In connection with those complaints, she has been
diagnosed with a minimal disc bulge at the T11-T12, mildly
asymmetric left disc bulge and facet degeneration at the L3-L4,
sciatica, chronic pain syndrome, lumbar facet joint pain, lumbar
facet syndrome, chronic pain syndrome of uncertain etiology, and
fibromyalgia. Treatment for those conditions has included
physical therapy, home exercise, various medications, lumbar
medial branch blocks, and orthotics.
The record includes three formal assessments of
McLaughlin’s ability to perform work related physical
activities, two of which are relevant to the analysis that
follows.1
In a Medical Source Statement of Ability to Do Work-Related
Activities (Physical), completed in May of 2012, Dr. John Ford
opined, among other things, that McLaughlin could both
occasionally and frequently lift and/or carry less than ten
pounds. The parties’ Joint Statement of Material Facts mentions
treatment by a variety of medical professionals, but does not
1 The third assessment is a Functional Capacity Evaluation completed by occupational therapist John Lane. See Tr. 251-54. Because that evaluation was not rendered by an acceptable medical source, see 20 C.F.R. § 404.1513(d), it plays no part in the court’s analysis.
4 mention any treatment by Dr. Ford, nor does it indicate that Dr.
Ford ever examined McLaughlin. However, Dr. Ford’s medical
source statement includes the following attestation:
Based on my education, training and experience and my evaluation of Ms. McLaughlin including treatment of her and review of records and history, the foregoing represents my professional opinion as to Cheryl McLaughlin’s physical limitations from 10/1/10 to the present.
Tr. 423. That attestation appears to be mere boilerplate, and
in the analysis that follows, the court presumes that Dr. Ford
neither examined nor treated McLaughlin.
The record also includes a Physical Residual Functional
Capacity Assessment completed by Margaret Callahan.2 Callahan is
a single decisionmaker. A single decisionmaker is an employee
of the Social Security Administration who has no medical
credentials. See Stratton v. Astrue, 987 F. Supp. 2d 135, 138
n.2 (D.N.H. 2012) (citing Goupil v. Barnhart, No. 03-34-P-H,
2003 WL 22466164, at *2 n.2 (D. Me. Oct. 31, 2001)). Callahan
determined that McLaughlin had the capacity to lift and/or carry
10 pounds frequently and 20 pounds occasionally.
2 “Residual functional capacity,” or “RFC,” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1).
5 After conducting a hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
of law:
3. The claimant has the following severe impairment: right shoulder pain, status post surgery (20 CFR 404.1520(c)).
. . . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant is to have a sit/stand option. The claimant can occasionally climb stairs, ramps, ladders, ropes and scaffolds, balance, stoop, kneel, crouch, crawl, and perform overhead reaching with the right upper extremity.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
6 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
Administrative Transcript (hereinafter “Tr.”) 13, 15, 20, 21.
Based upon his assessment of McLaughlin’s residual functional
capacity, and a hypothetical question posed to a vocational
expert that incorporated the RFC recited above, the ALJ
determined that McLaughlin was able to perform the jobs of hotel
clerk, companion, and recreation assistant. All three jobs are
classified as light work, see 20 C.F.R. § 1567(b), and as
semiskilled.
Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question
in this case is whether McLaughlin was under a disability from
October 1, 2010, through the date of the ALJ’s decision.
For the purpose of determining eligibility for disability
insurance benefits,
7 [t]he term “disability” means . . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). Moreover,
[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step process. See 20 C.F.R. §
404.1520.
The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional
8 capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five step process as
the one prescribed in 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982).
Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.
9 Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. McLaughlin’s Arguments
McLaughlin argues that the ALJ erred by: (1) relying upon a
physical RFC assessment authored by a single decisionmaker; (2)
determining that she was capable of performing semiskilled work
without determining that she had transferable job skills; and
(3) mishandling several opinions concerning his physical
limitations. McLaughlin’s first argument is persuasive and
dispositive.
As noted, McLaughlin first contends that the ALJ erred by
basing his step two determination and his RFC finding on an RFC
assessment made by a Social Security single decisionmaker, who,
by definition, is not an acceptable medical source. In
response, the Acting Commissioner points out that the ALJ did
not even mention the single decisionmaker’s RFC assessment in
his decision. The Acting Commissioner is correct; the ALJ did
not mention Callahan’s RFC assessment in his decision. But
McLaughlin’s deduction that the ALJ relied on Callahan’s RFC
assessment is understandable, given that Callahan’s is the only
RFC assessment in the record suggesting that McLaughlin had the
10 capacity to perform light work. In any event, and
notwithstanding McLaughlin’s argument about the impropriety of
relying upon an opinion from a single decisionmaker, the real
question here is whether the ALJ correctly found that McLaughlin
was capable of meeting the physical exertion requirements of
light work.
Under the applicable Social Security regulations, “[l]ight
work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10
pounds.” 20 C.F.R. § 404.1567(b). The record includes one
statement on McLaughlin’s capacity to lift and carry that was
rendered by an acceptable medical source. See 20 C.F.R. §§
1513(a) & (d) (identifying licensed physicians as acceptable
medical sources and characterizing non-medical sources such as
Callahan and occupational therapist John Lane as “other
sources”). That statement came from Dr. Ford. According to Dr.
Ford, McLaughlin’s capacity to lift and carry did not qualify
her to perform light work.
As he was obligated to do, the ALJ evaluated Dr. Ford’s
opinion. See 20 C.F.R. § 404.1527(c). He gave that opinion
limited weight, and gave two reasons for doing so.
First, he noted that “[t]he evidence does not indicate that
Dr. Ford treated or even examined the claimant.” Tr. 19. The
11 hierarchy of medical source opinions described in the Social
Security regulations provides that, generally speaking, the
greatest weight should be placed on opinions from treating
sources, with less weight placed on opinions from medical
sources who merely examine a claimant, and the least weight of
all on opinions from medical sources who have neither treated
nor examined a claimant. See 20 C.F.R. § 404.1527(c). Those
regulations would have allowed the ALJ in this case to discount
Dr. Ford’s opinion and give greater weight to an opinion from an
examining source or a treating source. But there are no other
medical opinions in this case, which makes it largely analogous
to Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999), in which
the court of appeals directed the district court to remand the
matter to the Commissioner because the ALJ formulated an RFC
that contradicted the only opinion in the record that was
rendered by an acceptable medical source. See also Littlefield
v. Colvin, No. 14-cv-53-LM, 2015 WL 667641, at *6 (D.N.H. Feb.
17, 2015) (explaining that after rejecting a medical opinion
without having an alternative medical opinion to rely on, “the
ALJ erred by making a mental RFC determination that was not
supported by a medical opinion”); Jabre v. Astrue, No. 11-cv-
332-JL, 2012 WL 1216260, at *8 (D.N.H. Apr. 5, 2012), report and
recommendation adopted by 2012 WL 1205866 (D.N.H. Apr. 9, 2012)
12 (same). Based upon Nguyen, Littlefield, and Jabre, the ALJ in
this case erred by formulating an RFC that included a limitation
on lifting that was not supported by a medical opinion.
In addition to relying upon Dr. Ford’s lack of a treating
or examining relationship with McLaughlin, the ALJ offered a
second reason for discounting Dr. Ford’s opinion. Specifically,
the ALJ explained that Dr. Ford’s “opinion related to sedentary
work limited to lifting less than 10 pounds frequently is
contrary to treatment records that indicate improvement after
shoulder surgery, mild disc desiccation and no nerve
impingement, normal gait and station, and normal neurological
exams.” Tr. 19-20. The problem is that “[t]he court of appeals
for this circuit has repeatedly held ‘that since bare medical
findings are unintelligible to a lay person in terms of residual
functional capacity, the ALJ is not qualified to assess residual
functional capacity based on a bare medical record.’”
Jabre, 2012 WL 1216260, at *8 (quoting Gordils v. Sec’y of HHS,
921 F.2d 327, 329 (1st Cir. 1990)). That is why, “when
assessing a claimant’s RFC, ‘[t]he general rule is that an
expert is needed to assess the extent of functional loss.”
Jabre, 2012 WL 1216260, at *8 (quoting Roberts v. Barnhart, 67
F. App’x 621, 622–23 (1st Cir. 2003); citing Manso–Pizarro, 76
F.3d at 17).
13 The Acting Commissioner defends the ALJ’s finding that
McLaughlin was capable of light work by arguing that the
circumstances of this case bring it within an exception to the
rule stated in Gordils. Under that exception, “the
[Commissioner] is [not] precluded from rendering common-sense
judgments about functional capacity based on medical findings,
as long as the [Commissioner] does not overstep the bounds of a
lay person’s competence and render a medical judgment.” Jabre,
2012 WL 1216260, at *8 (quoting Gordils, 921 F.2d at 329). The
court cannot agree with the Acting Commissioner that a lay
person, exercising common sense judgment: (1) can translate
general improvement from shoulder surgery into a specific
capacity for lifting; (2) knows the relationship between lifting
ability and disc desiccation, nerve impingement, gait and
station, and neurological exams; or (3) has the ability to
determine whether a person with mild disc desiccation, a lack of
nerve impingement, normal gait and station, and normal
neurological exams is or is not capable of lifting 20 pounds
occasionally and 10 pounds frequently.
Because the ALJ in this case was not qualified to make an
RFC finding without the benefit of evidence from an expert, and
because there is no evidence from an expert that supports the
ALJ’s finding that McLaughlin was capable of light work, that
14 finding is not supported by substantial evidence. See Jabre,
2012 WL 1216260, at *9. Accordingly, this case must be remanded
to the Acting Commissioner for a proper RFC finding. See id.
Finally, because McLaughlin’s first argument is sufficient to
warrant a remand, the court need not address her two remaining
claims of error.
Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 10, is
denied, and McLaughlin’s motion to reverse the decision of the
Acting Commissioner, document no. 8, is granted to the extent
that the case is remanded to the Acting Commissioner for further
proceedings, pursuant to sentence four of 42 U.S.C. § 405(g).
The clerk of the court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
June 8, 2015
cc: Penelope E. Gronbeck, Esq. Karen B. Fitzmaurice, Esq. Robert J. Rabuck, Esq.