UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Nelson Andres Regalado
v. Case No. 15-cv-299-PB Opinion No. 2016 DNH 165 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Nelson Regalado moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
(“DIB”) 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, this
matter is remanded to the Acting Commissioner for further
proceedings consistent with this Memorandum and Order.
I. 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, I “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) (per curiam) (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
[Acting 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 [Acting
2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). “Moreover, [the court] must uphold the [Acting
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) (per curiam) (citing Rodriguez Pagan v.
Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987) (per curiam).
Finally, when determining whether a decision of the Acting
Commissioner is supported by substantial evidence, I 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)).
II. BACKGROUND
The parties have submitted a Joint Statement of Material
Facts. That statement (doc. no. 16) is part of the court’s
record and will be summarized here, rather than repeated in
full.
Regalado was involved in motor vehicle accidents in 2002,
2006, and 2010 that resulted in L5-S1 spondylolisthesis (2002),
and “compression fractures at T7, T8 and T10 with exaggerated
kyphosis and disc bulging [at] T3-T4 and T4-T5 without cord 3 compression” (2006), (doc. no. 16 at 6). For approximately 14
years, Regalado worked two jobs, as a boot stitcher and as a
machine operator. He stopped working as a boot stitcher in
2010. In August 2012, while performing his job as a machine
operator, he was injured. He last worked in November 2012, and
he filed his application for DIB that same month.
Regalado has been diagnosed with a variety of impairments
to his back and right shoulder. His treatment for those
conditions has included medication, injections, physical
therapy, home exercise, a corset, and shoulder surgery, which
was performed in October 2013.
In December 2012, Ms. Susan Maydwell, PAC, saw Regalado for
an initial orthopedic consultation, and she also completed a New
Hampshire Workers’ Compensation Medical Form for Regalado. He
was applying for compensation for the workplace injury he
suffered in August 2012. Based upon diagnoses of cervicalgia
and right rotator cuff tendonitis, Ms. Maydwell indicated that
Regalado had no work capacity, but had not reached maximum
medical improvement. When asked whether Regalado’s injury had
caused a permanent impairment, she checked the box for
“undetermined.”
In February 2013, a state-agency medical consultant
referred Regalado to an occupational therapist, James Samson, 4 for a Functional Capacity Evaluation (“FCE”). Based upon a
battery of tests, Sampson indicated that Regalado had the
demonstrated ability to lift and carry 10 pounds occasionally,
push 15 pounds occasionally, and pull 20 pounds occasionally.
Under the applicable regulations, those exertional limitations
translate into a capacity for sedentary work.1 Samson further
opined that Regalado had a demonstrated ability for frequent
sitting and for occasional static standing, walking, stair
climbing, balancing, bending/stooping, crouching/squatting,
crawling, twisting/spinal rotation, low-level work, fine finger
manipulation, light and firm grasping, pinching, and forward and
overhead reaching.
In addition to evaluating Regalado’s functional capacity,
Samson also administered three tests to evaluate the reliability
of Regalado’s statements about his symptoms. After reporting
the results of those tests,2 Samson had this to say:
Overall test findings, in combination with clinical observations, suggest considerable inconsistency to the reliability and accuracy of the client’s reports of pain and disability. In describing such findings, this evaluator is by no means implying intent.
1 “Sedentary work involves lifting no more than 10 pounds at a time . . . .” 20 C.F.R. § 404.1567(a).
2 Those tests included Waddell’s Inappropriate Symptom Questionnaire, on which Regalado’s score of 4/5 resulted in a rating of “[i]naccurate responses.” Administrative Transcript at 336. 5 Rather, it is simply stated that the client can do more at times than [he] currently state[s] or perceive[s]. While [his] subjective reports should not be disregarded, they should be considered within the context of such RPDR findings.
Administrative Transcript (hereinafter “Tr.”) at 336 (doc. no.
5).
In March 2013, state-agency medical consultant Dr. Jonathan
Jaffe, who did not examine Regalado, assessed Regalado’s
residual functional capacity (“RFC”)3 in reliance upon a review
of his medical records. Dr. Jaffe’s RFC assessment is reported
on a Disability Determination Explanation (“DDE”) form which
bears both his signature, as a medical consultant, and the
signature of Joanne Degnan, in her capacity as a “Disability
Adjudicator/Examiner,” Tr. at 121.
According to Dr. Jaffe, Regalado could lift and/or carry 20
pounds occasionally and 10 pounds frequently, and had the same
capacities for pushing and/or pulling. Under the applicable
regulations, those exertional limitations translate into a
capacity for light work.4 Dr. Jaffe further opined that Regalado
3 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1).
4 “Light 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). 6 could stand and/or walk with normal breaks for about six hours
in an eight-hour work day, and could also sit for about six
hours in an eight-hour workday. He also found that Regalado had
no postural, visual, or communicative limitations and had a
single manipulative limitation: a capacity to engage in only
“occasional overhead reaching [with his] right upper extremity.”
Tr. at 118-19.
In addition to rendering an opinion on Regalado’s RFC, Dr.
Jaffe had this to say about Samson’s FCE report:
F CE was obtained 3/13. Claimant reported pain – was unable to interact in English. There was no use of walking aids. Musculoskeletal exam was intact. There was pain reported with testing which did appear to be with less than full effort, with four of five Waddell’s signs present. Examiner indicated overall test findings in combination with clinical observation suggested considerable inconsistency to the reliability and accuracy of the claimant’s reports of pain and disability – totality of F CE report was consistent with light work function.5
Tr. at 119. While Dr. Jaffe correctly characterized Samson’s
FCE report as calling into question the validity of Regalado’s
reports of pain and disability, another portion of the DDE form
titled “Assessment of Policy Issues,” that may or may not have
5 Given Samson’s determination that Regalado was limited to lifting 10 pounds occasionally, it is not at all clear how Dr. Jaffe concluded that Samson’s FCE report was consistent with a “light work function” unless he added 10 more pounds of lifting capacity to Samson’s conclusions in some unspecified way.
7 been drafted by Dr. Jaffe,6 includes this statement: “Claimant’s
performance on FCE was not consistent and resulted in a low
degree of reliability of findings,” Tr. at 117. That is a
mischaracterization of what Samson said in his FCE report; he
questioned the reliability of Regalado’s reports of pain and
disability, not the reliability of the findings he made
concerning Regalado’s functional capacity.
In late March 2013, after the Social Security
Administration (“SSA”) initially denied his application for
benefits, Regalado saw Dr. Kathleen Smith for pain management
and “to get help appealing a [social security] disability
denial,” Tr. at 394. Dr. Smith provided the following
assessment:
LOW BACK PAIN. Severe with radicular signs in L5 distribution. Need to check recent [X-Ray] to make sure no exacerbation of previous lumbar compression fractures. Needs to be re-evaluated as to whether [he is] a surgical candidate. Disabled from [activities of daily living] now, and certainly currently unable to work. Will get outside imaging studies.
Tr. at 396. Under the heading “Patient Instructions,” Dr. Smith
wrote: “I will look at records and see if a surgery consult is
indicated and whether I can certify you as disabled in a letter.
6 The layout of the DDE form makes it difficult to determine whether the “Assessment of Policy Issues” section was written by Dr. Jaffe or Joanne Degnan. 8 This may take 2-3 weeks.” Tr. at 396. It does not appear that
Regalado has ever had back surgery, and despite the fact that he
saw Dr. Smith in both April and May of 2013, the record does not
appear to include either a letter from Smith certifying Regalado
as disabled or a formal RFC assessment by Smith.
After Regalado’s claim for DIB was denied by the SSA, he
received a hearing before an administrative law judge (“ALJ”).
At the hearing, the ALJ heard testimony from Regalado, but did
not take testimony from a vocational expert (“VE”). After the
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 impairments: degenerative disc disease and right shoulder tendonitis (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 for limiting overhead reaching with the right shoulder to occasional.
9 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
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)).
Tr. at 23, 24, 25, 27. Based upon her assessment of Regalado’s
RFC, her own determination that the one limitation she found had
“little or no effect on the occupational base of unskilled light
work,” Tr. at 27, and information from the DDE form appearing
under the heading “Assessment of Vocational Factors,” the ALJ
determined that Regalado was able to perform the jobs of usher,
tanning salon attendant, and fruit distributor. The Dictionary
of Occupational Titles (“DOT”)7 defines usher and fruit
distributor as light duty jobs, and while I was unable to
determine the exertional level of the tanning salon attendant
job, the parties appear to agree that that job is also light
duty.
7 The DOT is published by the United States Department of Labor, and the SSA regulations designate it as a source of vocational evidence for use in making disability determinations. See 20 C.F.R. § 404.1560(b)(2). 10 III. 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)-(E). The only question
in this case is whether Regalado was under a disability from
November 13, 2012, through January 23, 2014, which is the date
of the ALJ’s decision.
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 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 11 the one prescribed in 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
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). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations. 20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in 20 C.F.R. § 416.969; Heckler v. Campbell, 461 U.S. 458 (1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in 20 C.F.R. § 416.969. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust, id. § 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,” 20 C.F.R. § 416.969a(d) (2001). See also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).
12 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.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 22-23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Regalado’s Claims
In his memorandum of law, Regalado identifies the following
grounds for reversing the ALJ’s decision: (1) the ALJ erred at
Step 5 by not receiving evidence from a VE; (2) “[t]he ALJ erred
by failing to properly weigh and consider opinion evidence”
presented to her; and (3) substantial evidence supports neither
the ALJ’s RFC finding nor her credibility finding. See Doc. No.
9-1 at 3, 7, 12. Regalado’s second and third claims are both
meritorious.
1. Opinion Evidence
Regalado claims that the ALJ erred in her consideration of
both Samson’s FCE report and the opinions provided by Dr. Smith.
I agree that the ALJ mishandled Samson’s FCE report. That
mistake is material because Samson assessed Regalado as having
the RFC for only sedentary work while the ALJ determined that he 13 was capable of performing three different light-duty jobs.
I begin by acknowledging, as does Regalado, that because
Samson is an occupational therapist rather than a licensed
physician, he is not an “acceptable medical source” for the
purpose of providing an opinion on Regalado’s RFC. See 20
C.F.R. § 404.1513; see also Social Security Ruling (“SSR”) 06-
03p, 2006 WL 2329939, at *1 (Aug. 9, 2006). Although there are
certain limitations on the uses to which evidence from “other
sources” such as Samson may be put, see SSR 06-03p, 2006 WL
2329939, at *2, “information from such ‘other sources’ . . . may
provide insight into the severity of the impairment(s) and how
it affects the individual’s ability to function,” id. For that
reason, the Social Security regulations require the
decisionmaker to consider evidence from such “other sources.”
See id. at *4 (citing 20 C.F.R. § 404.1527). To assist
decisionmakers in meeting that requirement, the SSA has
promulgated guidance on how to consider evidence, including
opinions, from “other sources” such as Samson.
According to that guidance, the factors to be used when
evaluating opinions from “other sources” include: (1) “[h]ow
long the source has known [the claimant] and how frequently the
source has seen [the claimant]”; (2) “[h]ow consistent the
opinion is with the other evidence” of record; (3) “[t]he degree 14 to which the source presents relevant evidence to support [his
or her] opinion”; (4) “[h]ow well the source explains [his or
her] opinion”; (5) “[w]hether the source has a specialty or area
of expertise related to the [claimant’s] impairment(s)”; and (6)
“[a]ny other factors that tend to support or refute the
opinion.” SSR 06-03p, 2006 WL 2329939, at *4-5. SSR 06-03p
goes on to explain that “depending on the particular facts in a
case, and after applying the factors for weighing opinion
evidence, an opinion from a medical source who is not an
‘acceptable medical source’ may outweigh the opinion of an
‘acceptable medical source.’” Id. at *5. Finally:
Since there is a requirement to consider all relevant evidence in an individual’s case record, the case record should reflect the consideration of opinions from medical sources who are not “acceptable medical sources” and from “non-medical sources” who have seen the claimant in their professional capacity. Although there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions from these “other sources,” or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning . . . .
Id. at *6. In light of the foregoing guidance, there are
problems with both what the ALJ said about Samson’s FCE report
and what she did not say about it.
After describing Samson’s specific findings concerning 15 Regalado’s limitations, the ALJ continued:
Further, the musculoskeletal exam was intact and there was no use of a cane or other walking aid and the claimant, who reported pain on testing, exhibited four of the five Waddell’s signs indicating symptom exaggeration, and he exhibited less than full effort. The evaluator assessed that test findings and observation showed such inconsistency that results were held unreliable. A nonexamining agency program physician opined that the testing reflected the capacity for not sedentary but light work, citing the claimant’s activities of daily living, including driving, shopping for a hour at a time, walking for 100 meters and the fact that he appeared with a left arm brace where there was no impairment affecting the left arm.
Tr. at 25-26 (citation to the record omitted).
I begin with what is missing from the ALJ’s discussion.
First, while the ALJ mentioned the disagreement that Dr. Jaffe
had with Samson’s FCE report, she mentioned none of the other
factors listed in SSR 06-03p, several of which would tend to
support the validity of Samson’s opinion.8 Moreover, while the
ALJ expressly stated that she gave little weight to Dr. Smith’s
March 29, 2013, opinion, she did not say how much weight she
gave Samson’s opinion.
What the ALJ did say, specifically, is this: “The evaluator
[i.e., Samson] assessed that test findings [i.e., four of five
8 These factors include Samson’s presentation of relevant evidence to support his opinions, the explanations he gave for those opinions, and his area of expertise.
16 Waddell’s signs] and observation showed such inconsistency that
results were held unreliable.” Tr. at 25. To be sure, Samson
reported “considerable inconsistency to the reliability and
accuracy of the client’s reports of pain and disability.” Tr.
at 336 (emphasis added). But when he assessed the reliability
of the findings that resulted from specific tests of functional
capacity, Samson said this:
“Test of Light Strength Handling”: “Results appear reliable, and no inconsistencies noted. Majority of symptoms associated with prolonged neck positioning, repetitive reaching, repetitive bending, and low level work.”
“Purdue Pegboard”: “Results appear reliable, and no inconsistencies noted. Competitive test performance evident during evaluation.”
“Lifting Capacity”: “Client able to do more than reflected in intake and on pain scales.”
“Grip Testing” with the “Janmar Hand Dynamometer”: “Results indicative of low percentile for age and gender as well as evidence of less than full effort in right [upper extremity] and full effort in Left [upper extremity].”
“Low Level Mobility”: “Results appear reliable, and no inconsistencies noted. Competitive test performance evident during evaluation.”
17 . . . .
“Balance”: “Decreased balance noted specifically on right side. Reports of increased right leg pain during balance tasks.”
Tr. at 334-36 (underlining added). In light of those
assessments, it is evident that the ALJ erred by construing
Samson’s appraisal of the reliability and accuracy of Regalado’s
statements about his symptoms as a comment on the reliability of
the results he reported concerning Regalado’s functional
capacity. Samson said that Regalado’s statements about pain and
disability were unreliable; he did not say that the demonstrated
functional abilities he reported were unreliable. In fact, he
said quite the opposite, expressly stating that the results of
many specific tests were reliable, and noting test results
showing more capacity than Regalado had reported. In short, the
ALJ’s mischaracterization of Samson’s report, either on her own
or in reliance upon the erroneous characterization in the DDE
form, compels me to conclude that the ALJ’s apparent (but
unstated) decision to discount Samson’s opinion is not supported
by substantial evidence.
In conjunction with the ALJ’s failure to provide the kind
evaluation of Samson’s opinion that is called for by SSR 06-03p,
her mischaracterization of Samson’s opinion is an error that
requires remand. 18 2. Credibility
Regalado also claims that the ALJ erred in her assessment
of the credibility of his statements about his symptoms. Even
if the ALJ’s handling of Samson’s FCE report did not warrant a
remand, her credibility assessment would.
I begin by noting that when the ALJ made her decision on
Regalado’s claim, credibility assessments by SSA decisionmakers
were governed by SSR 96-7p, 1996 WL 374186 (July 2, 1996).
Since then, SSR 96-7p has been superseded by SSR 16-3p, 2016 WL
1119029 (Mar. 16, 2016). Thus, the ALJ’s decision will be
evaluated under SSR 96-7p, but on remand, SSR 16-3p shall
control.
Credibility is an issue when an ALJ must evaluate a
claimant’s symptoms, i.e., his or her “own description of his or
her physical or mental impairment(s),” SSR 96-7p, 1996 WL
374186, at *2. SSR 96-7p explains that “an individual’s
statement(s) about his or her symptoms is not enough in itself
to establish the existence of a physical or mental impairment or
that the individual is disabled.” Id. Rather,
[w]hen “symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness,” [SSR 96-7p, 1996 WL 374186, at *2], are alleged, SSR 96–7p prescribes a two-step evaluation process:
* First, the adjudicator must consider whether there is an underlying medically determinable 19 physical or mental impairment(s)—i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques—that could reasonably be expected to produce the individual’s pain or other symptoms. . . . If there is no medically determinable physical or mental impairment(s), or if there is a medically determinable physical or mental impairment(s) but the impairment(s) could not reasonably be expected to produce the individual’s pain or other symptoms, the symptoms cannot be found to affect the individual’s ability to do basic work activities.
* Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual’s pain or other symptoms has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work activities. For this purpose, whenever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record. Id.
Guziewicz v. Astrue, 2011 DNH 010, 11-12. Guziewicz further
explains that
SSR 96–7p outlines a specific staged inquiry that consists of the following questions, in the following order: (1) does the claimant have an underlying impairment that could produce his or her symptoms?; (2) if so, are the claimant’s statements about his or her symptoms substantiated by objective medical evidence?; and (3) if not, are the claimant’s statements about those symptoms credible?
20 Id. at 13. Moreover, when answering the second question, an ALJ
must “discuss . . . how [a claimant’s] statements [are]
inconsistent with the objective medical evidence.” Id. at 16
(emphasis added by Guziewicz) (quoting Santiago v. Astrue, Civil
Action No. 09-30006-KPN, 2009 WL 3517611, at *8 (D. Mass. Oct.
14, 2009). Such a discussion, in turn, should take the form of
a comparison between the claimant’s specific statements and the
objective medical evidence. See id. at 16-17
Here, the ALJ clearly indicated the specific statements she
was evaluating:
The claimant testified that he cannot lift his right upper extremity overhead and has difficulty with any movement. He testified he had finger numbness and swelling as well. He has difficulty holding on to articles and the swelling is so severe he cannot close his hand or drive. He is right-hand dominant. The claimant stated that providers told him not to use his right upper extremity. He takes medication to sleep and sometimes wakes up. He sleeps during the day in his recliner chair for 4 or 5 hours, stating that he has to lay down during the day because of his back. During the day he does exercises for his back. He has to use a cane because he loses the power in his leg. He has back pain on standing. Sometimes to get out of bed he has to roll over to put his feet down.
Tr. at 26. She then offered the following evaluation of those
statements:
After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and 21 limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.
The record shows no deformity of the shoulder and at least functional, if not normal, range of motion of the neck. He has almost full leg strength despite the claimant’s statements that he has falls. A nonexamining agency program physician assessed that the thoracolumbar findings on the MRI reflected only mild degenerative disc disease. Further, the functional capacity assessment findings were not consistent and are not highly reliable. A nonexamining agency program physician noted that there was a strong suspicion of malingering.
Tr. at 27 (citation to the record omitted). There are several
problems with the ALJ’s credibility assessment.
First, she appears to give short shrift to the question of
whether Regalado’s statements about his symptoms were
substantiated by objective medical evidence. In the first
paragraph of her assessment, she finds that Regalado’s
impairments could cause the symptoms he complains of, but then
she goes directly to the question of credibility, seeming to
bypass the question of substantiation for those statements in
the form of objective medical evidence.
Although the ALJ references objective medical evidence in
the second paragraph of her assessment, several of those
references are insufficiently explained. For example, while the
ALJ mentions evidence showing “no deformity of the shoulder and
at least functional, if not normal, range of motion of the
22 neck,” Tr. at 27, she does not link that medical evidence to any
particular statement by Regalado about the limiting effects of
his impairments, much less indicate how either of those two
findings undermines any such statement. Then she states that
“[a] nonexamining agency program physician assessed that the
thoracolumbar findings on the MRI reflected only mild
degenerative disc disease.” Tr. at 27. But again, the ALJ did
not link that medical evidence to any particular statement about
reduced function or indicate how that evidence undermines such a
statement. Moreover, there are a host of symptoms that the ALJ
does not address at all, such as numbness and swelling in
Regalado’s hands, and an alleged need to lay down and sleep
during the day.
In sum, the ALJ identified statements by Regalado
concerning a variety of symptoms that could significantly cut
into the range of work he can do, but she did not adequately
explain her decision not to credit those statements. That is a
second basis for remanding this matter.9
9 Regalado also claims that the ALJ erred by determining, without the guidance of a vocational expert, that his limitation to only occasional overhead reaching with his right arm had “little or no effect on the occupational base of unskilled light work,” Tr. at 27. Because this matter is being remanded on other grounds, and because Regalado could be assessed with a different RFC on remand, I decline to reach Regalado’s third claim of error because any analysis of the issue underlying that claim would be 23 IV. CONCLUSION
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision (doc. no. 11) is denied, and
Regalado’s motion to reverse that decision (doc. no. 9) is
granted to the extent that this matter 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 Memorandum and Order and close
the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
September 13, 2016
cc: James Christopher Torrisi, Esq. Natalie J. Friedenthal, Esq. T. David Plourde, Esq.
speculative at best.