UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robin L. King
v. Case No. 16-cv-146-JD Opinion No. 2016 DNH 149 Carolyn W. Colvin, Acting Commissioner
O R D E R
Robin L. King seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
social security disability benefits. King contends that the
Administrative Law Judge (“ALJ”) erred in failing to find that
she had additional severe impairments, in finding that she did
not meet Listing 1.04, and in evaluating the credibility of her
subjective complaints. The Acting Commissioner moves to affirm.
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 1
Robin King applied for social security disability benefits
because of meralgia paresthetica, leg numbness, and lower back
problems in October of 2012 when she was forty-six years old.
She had previously worked as a housekeeper, machine operator,
order picker, and temporary laborer.
The medical evidence in the administrative record begins in
September of 2011 when King saw Dr. West because of right knee
pain. Despite tenderness in her knee, she had a full range of
motion and her neurological exam was “non-focal” or normal. Dr.
West diagnosed tendonitis, obesity, hypertension, and
1 The background information is summarized from the parties’ joint statement of material facts. See LR 9.1(c).
2 depression. An x-ray of her knee in March of 2012 showed
osteoarthritic changes.
In October of 2012, King had a lumbar spine MRI that showed
lumbar spine degenerative disc and facet disease. The x-ray
also showed moderate narrowing of the spinal canal at L3/L4 and
moderate right foraminal narrowing. At an appointment in
November of 2012, the nurse found that King’s lumbar spinal area
was tender, her leg reflexes were diminished, but her straight
leg test was normal. By December, the nurse found that with
medication King had no acute distress despite back and thigh
tenderness.
In an evaluation at the Pain Clinic in January of 2013, Dr.
Ferns noted King’s diagnosis of lumbar spine degenerative disc
and facet disease, that King had stopped working due to pain,
that her strength was normal, her muscular range of motion was
normal, her gait was normal, and she could walk heel to toe.
Dr. Ferns administered a nerve block for her thigh pain. The
next week King reported that the pain was interfering with her
ability to walk and do things at home but her examination was
normal except for lumbar tenderness. King had another nerve
block in February of 2013 but had no relief from pain. Health
care providers reported during King’s appointments over the next
3 six months that she was experiencing symptoms of ankle swelling
due to obesity.
Dr. Hugh Fairley, a state agency consultative physician,
reviewed King’s medical records of physical impairments. Dr.
Fairley found that King retained the ability to lift and carry
ten pounds, walk and stand for two hours in an eight-hour day,
sit for six hours with alternating between sitting and standing,
occasionally do postural activities, and could not climb
ladders, ropes, or scaffolds.
A hearing before an ALJ was held on King’s application on
October 6, 2014. King was represented by an attorney and
testified at the hearing. King provided her educational
background and her prior work experience. She described her
daily activities and said that she could not work because of
arthritis in her back. A vocational expert testified that there
were jobs in the relevant economies that King could do.
The ALJ issued a decision on December 8, 2014. The ALJ
found that King had severe impairments due to bilateral meralgia
paresthetica and obesity but that King’s degenerative disc and
facet disease and right knee condition did not cause severe
impairment. He also found that King’s impairments did not meet
or equal a listed impairment and considered Listing 11.14. The
4 ALJ concluded that King had the residual functional capacity to
do light work under 20 C.F.R. § 404.1567(b), without climbing
ladders, scaffolds, and ropes, and could do postural activities
occasionally. With that evaluation, the ALJ found that King
could do her past work as a housekeeper and could also do other
jobs, such as fast food worker, cashier, and price marker.
The Appeals Council denied King’s request for review,
making the ALJ’s decision the Acting Commissioner’s final
decision.
Discussion
In support of her motion to reverse the Acting
Commissioner’s decision, King contends that the ALJ should have
found that she had severe impairments due to degenerative disc
disease and arthritis in her knee, should have found her
disabled under Listing 1.04, and should have credited her
testimony about her pain and limitations. The Acting
Commissioner moves to affirm, arguing that substantial evidence
supports the decision.
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. The claimant bears
5 the burden through the 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 Acting
Commissioner has the burden of showing that jobs exist which the
claimant can do. Heggarty v. Sullivan, 947 F.2d 990, 995 (1st
Cir. 1991).
A. Step Two – Severe Impairments
At Step Two, the ALJ determines based on the record
evidence whether the claimant has one or more medically
determinable impairments that are severe. § 404.1520(a)(ii).
An impairment or a combination of impairments is severe at Step
Two if it “significantly limits [the claimant’s] physical or
mental ability to do basic work activities.” § 404.1520(c). It
is the claimant’s burden at Step Two to show that she has a
medically determinable severe impairment. Bowen v. Yuckert, 482
U.S. 137, 146 & 149 (1987).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robin L. King
v. Case No. 16-cv-146-JD Opinion No. 2016 DNH 149 Carolyn W. Colvin, Acting Commissioner
O R D E R
Robin L. King seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
social security disability benefits. King contends that the
Administrative Law Judge (“ALJ”) erred in failing to find that
she had additional severe impairments, in finding that she did
not meet Listing 1.04, and in evaluating the credibility of her
subjective complaints. The Acting Commissioner moves to affirm.
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 1
Robin King applied for social security disability benefits
because of meralgia paresthetica, leg numbness, and lower back
problems in October of 2012 when she was forty-six years old.
She had previously worked as a housekeeper, machine operator,
order picker, and temporary laborer.
The medical evidence in the administrative record begins in
September of 2011 when King saw Dr. West because of right knee
pain. Despite tenderness in her knee, she had a full range of
motion and her neurological exam was “non-focal” or normal. Dr.
West diagnosed tendonitis, obesity, hypertension, and
1 The background information is summarized from the parties’ joint statement of material facts. See LR 9.1(c).
2 depression. An x-ray of her knee in March of 2012 showed
osteoarthritic changes.
In October of 2012, King had a lumbar spine MRI that showed
lumbar spine degenerative disc and facet disease. The x-ray
also showed moderate narrowing of the spinal canal at L3/L4 and
moderate right foraminal narrowing. At an appointment in
November of 2012, the nurse found that King’s lumbar spinal area
was tender, her leg reflexes were diminished, but her straight
leg test was normal. By December, the nurse found that with
medication King had no acute distress despite back and thigh
tenderness.
In an evaluation at the Pain Clinic in January of 2013, Dr.
Ferns noted King’s diagnosis of lumbar spine degenerative disc
and facet disease, that King had stopped working due to pain,
that her strength was normal, her muscular range of motion was
normal, her gait was normal, and she could walk heel to toe.
Dr. Ferns administered a nerve block for her thigh pain. The
next week King reported that the pain was interfering with her
ability to walk and do things at home but her examination was
normal except for lumbar tenderness. King had another nerve
block in February of 2013 but had no relief from pain. Health
care providers reported during King’s appointments over the next
3 six months that she was experiencing symptoms of ankle swelling
due to obesity.
Dr. Hugh Fairley, a state agency consultative physician,
reviewed King’s medical records of physical impairments. Dr.
Fairley found that King retained the ability to lift and carry
ten pounds, walk and stand for two hours in an eight-hour day,
sit for six hours with alternating between sitting and standing,
occasionally do postural activities, and could not climb
ladders, ropes, or scaffolds.
A hearing before an ALJ was held on King’s application on
October 6, 2014. King was represented by an attorney and
testified at the hearing. King provided her educational
background and her prior work experience. She described her
daily activities and said that she could not work because of
arthritis in her back. A vocational expert testified that there
were jobs in the relevant economies that King could do.
The ALJ issued a decision on December 8, 2014. The ALJ
found that King had severe impairments due to bilateral meralgia
paresthetica and obesity but that King’s degenerative disc and
facet disease and right knee condition did not cause severe
impairment. He also found that King’s impairments did not meet
or equal a listed impairment and considered Listing 11.14. The
4 ALJ concluded that King had the residual functional capacity to
do light work under 20 C.F.R. § 404.1567(b), without climbing
ladders, scaffolds, and ropes, and could do postural activities
occasionally. With that evaluation, the ALJ found that King
could do her past work as a housekeeper and could also do other
jobs, such as fast food worker, cashier, and price marker.
The Appeals Council denied King’s request for review,
making the ALJ’s decision the Acting Commissioner’s final
decision.
Discussion
In support of her motion to reverse the Acting
Commissioner’s decision, King contends that the ALJ should have
found that she had severe impairments due to degenerative disc
disease and arthritis in her knee, should have found her
disabled under Listing 1.04, and should have credited her
testimony about her pain and limitations. The Acting
Commissioner moves to affirm, arguing that substantial evidence
supports the decision.
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. The claimant bears
5 the burden through the 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 Acting
Commissioner has the burden of showing that jobs exist which the
claimant can do. Heggarty v. Sullivan, 947 F.2d 990, 995 (1st
Cir. 1991).
A. Step Two – Severe Impairments
At Step Two, the ALJ determines based on the record
evidence whether the claimant has one or more medically
determinable impairments that are severe. § 404.1520(a)(ii).
An impairment or a combination of impairments is severe at Step
Two if it “significantly limits [the claimant’s] physical or
mental ability to do basic work activities.” § 404.1520(c). It
is the claimant’s burden at Step Two to show that she has a
medically determinable severe impairment. Bowen v. Yuckert, 482
U.S. 137, 146 & 149 (1987).
King contends that because she had diagnosed conditions of
degenerative disc disease and osteoarthritis in her knee and had
pain that required nerve blocks to be administered those
conditions were severe impairments. The ALJ considered both
diagnoses, however, and found that they were not severe
6 impairments because the record did not show they caused more
than a minimal limitation in her ability to do activities. 2
King’s reference to the nerve block treatments is misplaced as
the nerve blocks were used to treat her thigh pain due to
bilateral meralgia paresthetica, which the ALJ found to be a
severe impairment. 3
B. Listing 1.04
At Step Three of the sequential analysis, the ALJ must
determine if the claimant’s impairment or combination of
impairments meets or equals a listed impairment. 20 C.F.R. §
1520(d). To meet a listed impairment, the claimant must show
that her impairment or combination satisfies all of the criteria
required in the listing. 20 C.F.R. § 404.1525(c)(3). To equal
a listing, a claimant must show that her impairment or
combination is “at least equal in severity and duration to the
criteria of any listed impairment.” § 404.1526(a).
Listing 1.04 pertains to disorders of the spine. 20 C.F.R.
2 King erroneously charges that the ALJ completely disregarded the diagnoses of degenerative disc disease. 3 Although Dr. Ferns noted the diagnosis of degenerative disc
and facet disease, he stated that King was referred to the Pain Clinic because of thigh pain due to bilateral meralgia paresthesia. 7 Part 404, Subpart P, App. 1, Part-A1, § 1.04. King states that
the requirements of Listing 1.04(A) “seem to be completely met
by the medical evidence.” She does not cite any specific
medical evidence or explain how medical evidence shows the
criteria of part A. It is King’s burden to prove that her
impairment or combination of impairments meets or equals Listing
1.04. See Newcomb v. Colvin, 2016 WL 3962843, at *2 (D. Me.
July 22, 2016).
Listing 1.04(A) requires: “Evidence of nerve root
compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied
by sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and
supine.” As the ALJ explained in finding that King’s
degenerative disc disease was not a severe impairment, the
medical record shows that King did not have limitation in motion
of her spine, motor loss, or positive straight-leg raising
tests. King has not provided any evidence to the contrary or
supported her assertion that obesity in combination with her
degenerative disc disease would meet the criteria of Listing
1.04(A).
8 Substantial evidence in the record supports the ALJ’s
finding at Step Three.
C. Subjective Complaints
King asserts that the ALJ failed to properly assess her
subjective complaints by making inconsistent findings in her
limitations in the activities of daily living, but does not
identify the inconsistencies that she perceives. She cites
Social Security Ruling (“SSR”) 96-7p for the requirement that
the ALJ provide specific reasons for a finding of the claimant’s
credibility. 4
In his decision, the ALJ noted King’s testimony about why
she could not work and her daily activities. The ALJ found that
King testified to extremely limited functional abilities but
that the medical evidence did not support King’s limited view of
her abilities. Although the ALJ did not recite the medical
4 SSR 96-7p provides the process by which an ALJ should evaluate a claimant’s subjective complaints. The Ruling was “was promulgated in part ‘to state the importance of explaining the reasons for the [ALJ’s] finding about the credibility of the individual’s statements in the disability determination.’” Rodrigues v. Colvin, 2016 WL 1076601, at *3 (D.R.I. Mar. 17, 2016) (quoting Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (July 2, 1996), at *1). 9 evidence to show the inconsistencies between King’s testimony
and the record, he provided a detailed review of King’s
complaints in light of the record in the context of the Step Two
evaluation. As such, substantial evidence exists in the record
to support the decision, and a failure to repeat the analysis in
this case does not require a remand.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 9) is denied. The Acting Commissioner’s motion to
affirm (document no. 10) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
/s/ Joseph A. DiClerico, Jr. Joseph A. DiClerico, Jr. United States District Judge
August 23, 2016
cc: Michael C. Shklar, Esq. Robert J. Rabuck, Esq.