Mitchell v. SSA 10-CV-539-PB 3/13/2012
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Deborah A. Mitchell
v. Case No. 10-cv-539-PB Opinion No. 2012 DNH 054 Michael J. Astrue. Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Deborah Mitchell seeks review of a decision by the
Commissioner of the Social Security Administration denying her
application for disability insurance benefits. Mitchell alleges
that the decision is not supported by substantial evidence, and
that the Administrative Law Judge who heard her case erred in
weighing the medical opinion evidence and in assessing her
credibility. For the reasons provided below, I reverse the
Commissioner's decision and remand the case for further
proceedings consistent with this Memorandum and Order.
I. BACKGROUND1
Mitchell filed an application for disability insurance
benefits on August 8, 2008, when she was 42 years old. She
1 Except where otherwise noted, the background information is taken from the parties' Joint Statement of Material Facts (Doc. No. 14). See LR 9.1(b). Citations to the administrative record are marked "Tr." claimed that her disability began on May 10, 2007, and was due
to chronic pain in her neck, right arm, and back. Mitchell has
a high school education and she worked as a school bus driver
for 19 years.
Mitchell's claim was denied on October 31, 2008. She
requested a hearing, and after appearing and testifying on April
21, 2010, her claim was again denied by an Administrative Law
Judge ("ALJ"). The Decision Review Board ("DRB") selected
Mitchell's case for review, and affirmed the ALJ's decision on
September 7, 2010. Although the DRB indicated that the ALJ may
have erred in determining that Mitchell could perform her past
relevant work as a bus driver, it agreed with the ALJ's
alternative finding that Mitchell could perform other work in
the national economy. Accordingly, the ALJ's decision became
the final decision of the Commissioner.
A. Medical History
1. Treatment Summary
In February 2005, Mitchell began to receive treatment for
pain in her neck and back that would occasionally radiate into
her arms and legs. Her doctors noted that the pain was likely
caused by the repetitive nature and poor ergonomics of her job.
2 Examinations revealed structural damage to her back,2 and after
prescription medications and a course of physical therapy and
massage failed to afford Mitchell substantial relief, she
underwent disc surgery in June 2005.
Although the surgery helped to alleviate some of her
symptoms, Mitchell continued to seek treatment for pain across
her back, neck, arms, and legs, as well as for problems sleeping
due to the pain. She reported that basic activities, such as
sitting, standing, driving, and doing household chores,
aggravated her symptoms. Her medical treatment providers
administered numerous injections, directed her to undergo
physical therapy, and prescribed medications and equipment to
ease her pain. Through the date of her hearing, Mitchell
continued to see her treatment providers on a regular basis.
Their notes reveal that Mitchell reported varying levels of
pain, ranging from mild to moderate levels during good times to
excruciating levels at the worst times. By 2008, Mitchell was
2 In May 2005, Dr. John Rescigno diagnosed Mitchell with cervical radiculopathy and thoracic myelopathy. Cervical radiculopathy is a disease of the spinal nerve roots and nerves in the neck. Stedman's Medical Dictionary 280, 1308 (25th ed. 1990) [hereinafter Stedman's]. Thoracic myelopathy is a disturbance or disease of the spinal cord in the area between the neck and abdomen. Id. at 1013, 1595. Through the course of her treatment, other physicians provided additional diagnoses of damage to her spinal cord and the musculature in her back. 3 regularly taking narcotics, such as Vicodin and Percocet, to
ameliorate her pain and allow her to function.
2. Work Limitations Noted by Treatment Providers
Dr. Alison Baker and her physician's assistant, Stefanie
Diamond, both of whom treated Mitchell over a period of years,
would regularly note their opinions about Mitchell's current
work capability on Workers' Compensation forms and other medical
records. In addition to specifying certain physical
limitations, they noted that Mitchell was capable of working
only up to a certain number of hours per week. The number of
hours would often change, depending on Mitchell's current
condition, but was never greater than 30 per week.
In June 2009, William Dooley, a physical therapist,
performed a functional capacity evaluation ("FCE"). He noted
that Mitchell gave a full physical effort and that her
subjective reports of pain and disability were reasonable and
reliable. His testing showed that Mitchell's work capacity
allowed for occasional sitting, standing, and walking, and that
she had the ability to lift 10 pounds occasionally. She had a
limited tolerance for doing work above her head and an
occasional tolerance for work up to the level of her shoulder.
The test results did not demonstrate an ability to perform her
past work as a bus driver. 4 After reviewing Mr. Dooley's FCE shortly after it was
performed. Dr. Baker stated her opinion that Mitchell had the
capability to work for 4 hours a day, 5 days a week.
Approximately 3 months later, in September 2009, Dr. Baker
completed a Medical Source Statement of Ability to Do Work-
Related Activities. Dr. Baker noted that Mitchell could
occasionally lift and carry up to 20 pounds; could sit for 30-45
minutes at a time and up to 2 hours total in an 8-hour workday;
could stand for 30-45 minutes at a time and up to 2 hours in an
8-hour workday; and could walk for 20 minutes at a time and up
to 1-2 hours in an 8-hour workday. She limited Mitchell to
occasional performance of various postures and manual
activities. Dr. Baker also noted that Mitchell informed her
that she needed to recline 3-5 times each day for 30-45 minutes
and to change positions every 30-45 minutes.
The notes and forms filled out by Dr. Baker and Ms. Diamond
show that their opinions of Mitchell's work capabilities did not
subsequently change. In April 2010, Dr. Baker indicated that
Mitchell's functional capacity remained the same as she had
indicated in her June assessment, and Ms. Diamond indicated that
Mitchell's functional capacity remained the same as had been set
forth in the FCE.
5 In addition to her treating medical sources. Dr. Hugh
Fairley, the consultative state agency doctor, provided an
opinion concerning Mitchell's residual functional capacity
("RFC"). His analysis was conducted in October 2008, and he
identified Mitchell's diagnoses as cervico-thoracic degenerative
disease and myofascial pain.3 Dr. Fairley stated that Mitchell
could lift 20 pounds occasionally and 10 pounds frequently;
stand and/or walk for 6 hours in an 8-hour workday; and sit
about 6 hours in an 8-hour workday. In his concluding remarks
he stated, "A closed 12 month period of total disability is not
seen, & light work only is recommended." (Tr. 562).
3. Self-Reporting
In a Disability Report and a Function Report, Mitchell
noted that she performed a number of regular household chores,
like laundry and vacuuming, but did so with difficulty and pain.
These activities took much longer than they should have, and
they aggravated her symptoms. Family and friends were often
enlisted to help with basic chores. Although Mitchell was able
to use a car at times, sometimes her symptoms left her unable to
3 Cervico-thoracic refers to the neck and thorax, and the thorax is the area between the neck and abdomen. Stedman's at 280-81, 1594. Myofascial refers to the "fascia surrounding and separating muscle tissue," id. at 1016, and the fascia is a "sheet of fibrous tissue that envelops the body beneath the skin; it also encloses muscles and groups of muscles, and separates their several layers or groups," id. at 565. 6 drive to pick up her medication. Her use of prescription
medication made it unsafe for her to drive children.
Mitchell noted that her pain would flare up in response to
certain weather conditions and activities. She was unable to
sleep through the night because of her symptoms, and would wake
up several times in a typical night. She stated that her
hobbies and interests had been reading, watching TV, walking her
dog, and sewing, and although she still read twice a week and
watched TV daily, she could no longer walk the dog or sew.
B. Administrative Hearing
1. Mitchell's Testimony
At the administrative hearing, Mitchell testified that she
was not able to work because of daily pain, of varying
intensities, in her neck, her right arm, and the middle of her
back. Although she had been prescribed Vicodin and Percocet,
she continued to experience pain. When her pain increased, she
would need to recline and use ice. When her symptoms were at
their worst, she was nearly unable to get out of bed, even after
taking her medication.
Mitchell discussed her regular activities, stating that she
helped her 14-year-old son get ready for school in the morning.
She did simple things during the day such as emptying the
dishwasher, doing laundry, making beds, and feeding her cats. 7 These activities were performed with breaks in between.
Vacuuming especially aggravated her pain, so her husband would
typically do the vacuuming for her on the weekends. She would,
however, do the vacuuming herself every week or every other
week. She would cook, but her husband and children helped her
with peeling, cutting, and mashing potatoes and her husband
would have to take items out of the oven for her. She stated
that her ability to drive was limited and, after 15-20 minutes
behind the wheel, her pain would increase.
Mitchell testified that her medicine caused drowsiness and
that her symptoms made it generally difficult for her to focus
and concentrate. Discussing physical limitations, Mitchel
asserted that she could sit for 30-45 minutes at a time and she
had to constantly change positions. She indicated her ability
to stand was limited by pain and that after loading the
dishwasher and cleaning a few pans, she would need to sit down
or recline. She estimated that she could stand for a couple
hours out of an 8-hour day but would constantly have to change
positions. In addition to her continuous need to change
positions, she would have to recline 2 to 3 times a day. On bad
days she would have to recline as many as 5 times, or else spend
most of the day reclining. On average, she estimated she
reclined 3 times a day for 45 minutes. She asserted that was unable to lift more than 5 pounds frequently and 10 pounds
occasionally.
2. Vocational Expert's Testimony
At the hearing, the ALJ posited a number of hypotheticals
to a vocational expert (VE). In one, the ALJ asked the VE what
work could be performed by an individual who could lift 15
pounds occasionally and 10 pounds frequently; could sit for an
hour and a half at a time and 6 hours in an 8-hour workday;
could frequently stand for a half-hour at a time, but not as
much as two-thirds of the day; could occasionally walk for up to
one-third of the day; could occasionally climb ladders and
stairs; could occasionally reach above the shoulders for up to
one-third of the day; and who did not have any limitations with
regard to bending, stooping, crouching, or squatting. The VE
testified that such an individual could perform work as a mail
clerk, an office helper, or a toll collector and, within the
sedentary level of exertion, that person could perform the job
of a charge account clerk.
In another hypothetical, the ALJ repeated the limitations
of the first hypothetical with two alterations. He reduced the
individual's weight-lifting capability to 10 pounds occasionally
and 5 pounds frequently, and added the restriction that the
individual would need to lie down 3 to 5 times a day. The VE 9 testified that such an individual would likely be unable to
perform any competitive employment.
C. ALJ's Decision
The ALJ found that Mitchell suffered from two severe
impairments, status post fusion C5-7 with disc bulge at C4-5 and
degenerative disc disease of the thoracic spine at Tll-12.
After determining that neither impairment met or medically
equaled a listed impairment, the ALJ found that Mitchell
retained the RFC to perform light work, and that Mitchell's
restrictions were consistent with the restrictions noted in the
first of the two hypotheticals discussed above that were posed
to the V E . In light of Mitchell's RFC and the VE's testimony,
the ALJ concluded that she could perform her past relevant work
as a school bus driver, as well as other work as a mail clerk,
office helper, or toll clerk. Accordingly, the ALJ determined
that Mitchell was not disabled.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and 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 10 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.'"
Irlanda Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriquez v. Sec'y of
Health and Human Servs., 647 F.2d 218, 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." Id. at 770. Findings are not
conclusive, however, if they are derived by "ignoring evidence,
misapplying the law, or judging matters entrusted to experts."
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
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 11 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 do, 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).
Ill. ANALYSIS
Mitchell presents three arguments for why I should reverse
the Commissioner's Decision: (1) the ALJ failed to properly
weigh the opinions of her treating physician. Dr. Baker, and her
physician's assistant, Ms. Diamond; (2) the ALJ erred in finding
Mitchell's subjective complaints of pain not fully credible; and
(3) the ALJ's RFC assessment was not supported by substantial
evidence in the record. I agree with Mitchell that a remand is
warranted on the basis of the ALJ's failure to properly account
for the opinion evidence of record. In light of that outcome, I
need not address her other arguments.
A. Law on Evaluating Opinion Evidence
An ALJ must take into account the medical opinions in a
claimant's case record when coming to a determination on
disability. 20 C.F.R. § 404.1527(b)- (d). More weight should 12 generally be accorded to the opinion of medical sources who have
examined the claimant, and more weight should generally be
accorded to treating sources than non-treating sources. 20
C.F.R. § 404.1527(d)(l)-(2). The rationale for giving more
weight to treating sources is that "these sources are likely to
be the medical professionals most able to provide a detailed,
longitudinal picture of [the claimant's] medical impairment(s)
and may bring a unique perspective . . . that cannot be obtained
from the objective medical findings alone or from reports of
individual examinations[.]" 20 C.F.R. § 404.1527(d)(2).
When the opinion of a treating physician is well supported
and not inconsistent with other record evidence, it must be
given controlling weight. Id.; Social Security Ruling 96-2p,
1996 WL 374188 (July 2, 1996) [hereinafter SSR 96-2p]. In all
other instances, a number of factors apply to determine how much
weight should be given to an opinion. 20 C.F.R. §
404.1527(d)(2). The factors to be considered include: the
length of the treatment relationship and frequency of
examination; the nature and extent of the treatment
relationship; the record evidence supporting the opinion; the
consistency of the opinion with other record evidence; and
whether the source is a specialist. Id.
13 An ALJ must always provide "good reasons" in his decision
for the weight accorded to a treating source's opinion. Id.
When an ALJ's decision is not favorable to the claimant, the
decision must contain reasons for discounting the treating
source's opinion that are "sufficiently specific to make clear
to any subsequent reviewers" both "the weight the adjudicator
gave" to the opinion and "the reasons for that weight." SSR 96-
2p.
B. ALJ's Treatment of Opinion Evidence
After analyzing the credibility of Mitchell's statements
about her symptoms by engaging in a fairly extensive review of
Mitchell's medical history -- citing with specificity to various
appointments, courses of medication, and notations in medical
records -- the ALJ addressed the medical opinion evidence. The
ALJ's analysis of the opinion evidence is far sparser than his
credibility analysis. It reads, in its entirety:
As for the opinion evidence, none of the claimant's treating sources have described the claimant as disabled. Rather, while noting some limitations, all concur that the claimant remains capable of returning to light duty work activity.
The undersigned also has considered the opinion of the State agency medical consultant at the initial level of the administrative review process. While that opinion was reasonable based on the evidence contained in the record at that time, additional evidence received into the record at the hearing level
14 convinces the undersigned that the claimant was more limited than originally thought.
Tr. 19 (internal citation omitted).
Mitchell argues that the ALJ is factually inaccurate in
stating that her treating sources never described her as
disabled. I agree. Mitchell's primary treating physician. Dr.
Baker, never cleared Mitchell to work on a full-time basis, and
her most recent evaluations limit Mitchell's work capacity to
less than 40 hours per week. Her June 2009 opinion noted that
Mitchell was only capable of working up to 20 hours per week,
and her September 2009 opinion stated that Mitchell's combined
ability to stand, sit, and walk in a workday was no greater than
5-6 hours.4 Under the applicable guidelines, an individual who
is unable to work a 40-hour workweek is considered disabled.
See Social Security Ruling 96-8p, 1196 WL 374184 (July 2, 1996)
(RFC is based on claimant's "ability to do sustained work
activities in an ordinary work setting on a regular and
continuing basis," where "'a regular and continuing basis' means
4 In addition to Dr. Baker, Ms. Diamond, who also regularly treated Mitchell, opined that Mitchell would not be able to work a 40-hour workweek. As a physician's assistant, Ms. Diamond is not an acceptable medical source under 20 C.F.R. 404.1513(a). Although her viewpoint could be given less weight on that basis, the ALJ was nonetheless obliged to consider her opinion. Social Security Ruling 06-03p, 2006 WL 2329939 (Aug. 9, 2006). The failure to address Ms. Diamond's contrary viewpoint constitutes further error. 15 8 hours a day, for 5 days a week, or an equivalent work
schedule").
Given the discrepancy between his determination and that of
Dr. Baker, the ALJ was required to give specific reasons for
discounting Dr. Baker's opinion on Mitchell's ability to work
full-time. See 20 C.F.R. § 404.1527(d)(2); SSR 96-2p.
Apparently failing to recognize the existence of a discrepancy,
however, the ALJ did not attempt to reconcile his own
conclusions with the contrary portions of Dr. Baker's opinion.
I cannot affirm a decision that is based on a misinterpretation
of record evidence and that is bereft of the explanation
necessary to resolve a conflict in the evidence. See Chater,
172 F.3d at 35 ("The ALJ's findings of fact .. . are not
conclusive when derived by ignoring evidence[.]"); Dube v.
Astrue, 781 F. Supp. 2d 27, 34 (D.N.H. 2011) (reversing and
remanding Commissioner's decision "because the ALJ did not
address contradictory aspects of the medical opinion offered").
The Commissioner's responses are unavailing. For example,
the Commissioner notes that "opinions from acceptable medical
sources may be discounted for good reason without slavish
discussion of all potentially applicable factors." Def.'s Mem.
Supp. Mot. to Aff. at 5, Doc. No. 13-1 (citing Golfieri v.
Barnahart, No. 06-14-B-W, 2006 WL 3531624, at *4 (D. Me. Dec. 6, 16 2006)). Whether or not "slavish discussion" is required, in
this case the ALJ omitted all explanation and did not reference
a single one of the factors enumerated in 20 C.F.R. §
404.1527(d)(2). Moreover, he did not even indicate a
recognition that his conclusion was at odds with the opinion of
Dr. Baker.
The Commissioner also contends that the decision should be
affirmed in light of the ALJ's discussion of record evidence in
other portions of his opinion. The ALJ demonstrated a
familiarity with certain portions of Dr. Baker's treatment notes
and based his decision on evidence that was inconsistent with
the opinion of Dr. Baker. The ALJ's broader discussion,
however, did not abrogate his duty to provide specific reasons
for discounting the medical opinion of Mitchell's longstanding
treating physician. See SSR 96-2p (ALJ's explanation must be
"sufficiently specific to make clear to any subsequent reviewers
. . . the reasons" why he discounted the medical opinion).
Although it may well be that the record contains sufficient
evidence to support the ALJ's determination, the ALJ failed to
recognize that Dr. Baker's opinion differed from his and failed
to adequately explain why Dr. Baker's opinion did not carry the
day. I must reverse the Commissioner's decision and remand for
further proceedings. 17 IV. CONCLUSION
For the foregoing reasons, I deny the Commissioner's motion
to affirm (Doc. No. 13) and grant Mitchell's motion to reverse
(Doc. No. 11). Pursuant to 42 U.S.C. § 405(g), I remand this
case to the Social Security Administration for further
proceedings consistent with this decision. The clerk is
directed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
March 13, 2012
cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.