Shaw v . SSA 11-CV-141-SM 12/16/11 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Chrissy D. Shaw, Claimant
v. Case N o . 11-cv-141-SM Opinion N o . 2011 DNH 213
Michael J. Astrue, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Claimant,
Chrissy Shaw, moves to reverse the Commissioner’s decision
denying her application for Social Security Disability Insurance
benefits under Title II of the Social Security Act and
Supplemental Security Income benefits under Title XVI of the Act.
See 42 U.S.C. §§ 423, 1381 et seq. The Commissioner objects and
moves for an order affirming his decision.
Factual Background
I. Procedural History
On November 1 0 , 2008, claimant filed an application for
Social Security Disability Insurance benefits (“DIB benefits”)
and on November 2 5 , 2008, filed an application for Supplemental
Security Income benefits (“SSI benefits”). In both applications
she alleged that she had been unable to work since November 2 6 , 2005. She asserted eligibility for benefits based on
disabilities due to problems with her cervical spine, bipolar
disorder, arthritis, anxiety, and depression. Her applications
for benefits were denied and she requested an administrative
hearing before an Administrative Law Judge (“ALJ”).
On August 9, 2010, claimant, her attorney, and an impartial
vocational expert appeared before an ALJ. On October 2 0 , 2010,
the ALJ issued his written decision, concluding that claimant was
not disabled. The Decision Review Board selected the ALJ’s
decision for review, but did not complete its review within the
time allowed. Accordingly, the ALJ’s decision became the final
decision of the Commissioner, subject to judicial review.
Claimant then filed a timely action in this court, appealing
the denial of DIB and SSI benefits. Now pending are claimant’s
“Motion for Order Reversing Decision of the Commissioner”
(document n o . 11) and the Commissioner’s “Motion for Order
Affirming the Decision of the Commissioner” (document n o . 1 5 ) .
II. Stipulated Facts
Pursuant to Local Rule 9.1(d), the parties submitted a Joint
Statement of Material Facts which, because it is part of the
court record (document n o . 1 6 ) , need not be recounted in detail
2 here. Facts relevant to the decision will be discussed as
appropriate.
Standard of Review
I. Properly Supported Findings by the ALJ are Entitled to Deference
Pursuant to 42 U.S.C. § 405(g), the court is empowered “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.” Factual findings of the Commissioner are
conclusive if supported by substantial evidence.1 See 42 U.S.C.
§§ 405(g); Irlanda Ortiz v . Secretary of Health & Human Services,
955 F.2d 765, 769 (1st Cir. 1991). Moreover, provided the ALJ’s
findings are supported by substantial evidence, the court must
sustain those findings even when there may also be substantial
evidence supporting the contrary position. See Tsarelka v .
Secretary of Health & Human Services, 842 F.2d 529, 535 (1st Cir.
1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if
the record arguably could justify a different conclusion, so long
1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n., 383 U.S. 6 0 7 , 620 (1966).
3 as it is supported by substantial evidence.”). See also
Rodriguez v . Secretary of Health & Human Services, 647 F.2d 2 1 8 ,
222 (1st Cir. 1981) (“We must uphold the [Commissioner’s]
findings in this case if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate to
support his conclusion.”).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
(citing Sitar v . Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982)). It
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 courts.” Irlanda Ortiz, 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
to the ALJ’s credibility determinations, particularly when those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services, 829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
Human Services, 803 F.2d 2 4 , 26 (1st Cir. 1986)).
4 II. The Parties’ Respective Burdens
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable “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). The Act places a heavy initial burden on
claimant to establish the existence of a disabling impairment.
See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146-47 (1987); Santiago v .
Secretary of Health & Human Services, 944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, claimant must prove that her
impairment prevents her from performing her former type of work.
See Gray v . Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v . Secretary of Health & Human Services, 690 F.2d 5 , 7
(1st Cir. 1982)). Nevertheless, claimant is not required to
establish a doubt-free claim. The initial burden is satisfied by
the usual civil standard: a “preponderance of the evidence.” See
Paone v . Schweiker, 530 F. Supp. 8 0 8 , 810-11 (D.Mass. 1982).
If claimant demonstrates an inability to perform her
previous work, the burden shifts to the Commissioner to show that
there are other jobs in the national economy that she can
perform. See Vazquez v . Secretary of Health & Human Services,
5 683 F.2d 1 , 2 (1st Cir. 1982). See also 20 C.F.R. §§
404.1512(g). If the Commissioner shows the existence of other
jobs that claimant can perform, then the overall burden to
demonstrate disability remains with claimant. See Hernandez v .
Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Benko v .
Schweiker, 551 F. Supp. 6 9 8 , 701 (D.N.H. 1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) claimant’s subjective claims of pain and
disability, as supported by the testimony of claimant or other
witnesses; and (3) claimant’s educational background, age, and
work experience. See, e.g., Avery v . Secretary of Health & Human
Services, 797 F.2d 1 9 , 23 (1st Cir. 1986); Goodermote, 690 F.2d
at 6. When determining whether a claimant is disabled, the ALJ
is also required to make the following five inquiries:
(1) whether claimant is engaged in substantial gainful activity;
(2) whether claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents claimant from performing past relevant work; and
(5) whether the impairment prevents claimant from doing any other work.
6 20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
decision.
Discussion
I. Background - The ALJ’s Findings
The ALJ concluded that Shaw was not disabled from November
1 5 , 2007, through the date of his decision. In reaching his
decision, the ALJ properly employed the mandatory five-step
sequential evaluation process described in 20 C.F.R. § 404.1520.
He first determined that Shaw had not been engaged in substantial
gainful employment since her alleged onset of disability. Next,
he concluded that Shaw has the severe impairment of degenerative
disc disease. Administrative Record (“Admin. Rec.”) 1 4 .
7 Nevertheless, the ALJ determined that the impairment did not meet
or equal one of the impairments listed in Part 4 0 4 , Subpart P,
Appendix 1 . Admin. Rec. 1 5 .
Next, the ALJ concluded that Shaw retained the residual
functional capacity to perform the full range of light work,
allowing for performing the postural functions occasionally.
Admin. Rec. 1 6 . The ALJ concluded, therefore, that Shaw is
capable of performing her past relevant jobs as a child care
worker, assembler, hand packager, counter attendant, icer, and
companion for the elderly. Admin. Rec. 1 7 .
Consequently, the ALJ concluded that Shaw was not
“disabled,” as that term is defined in the Act, through the date
of his decision. Admin. Rec. 1 7 . Shaw, therefore, was deemed
ineligible for DIB and SSI benefits.
II. Claimant’s Challenges to the ALJ’s Decision
Shaw moves to reverse the Commissioner's decision, arguing
that the ALJ erred by failing to find that her bipolar disorder
was a serious impairment at Step 2 of the sequential analysis and
also erred by failing to properly evaluate her subjective mental
and physical symptoms. The Commissioner responds that because
the ALJ found a severe physical impairment at Step 2 no error
8 occurred and that the ALJ properly assessed Shaw’s subjective
complaints.
A. Step 2
Claimant alleges the ALJ erred at Step 2 in finding that her
mental impairment was not severe. “It is well established in
this circuit ‘that the Step 2 severity requirement is . . . to be
a de minimus policy, designed to do no more than screen out
groundless claims.’” Mohammad v . Astrue, N o . 10-cv-254-JL, 2011
WL 1706116, at *7 (D.N.H. April 4 , 2011) (quoting McDonald v .
Secretary of Health & Human Services, 795 F.2d 1118, 1124 (1st
Cir. 1986). Here, the ALJ found that claimant had a “medically
determinable mental impairment of bipolar disorder.” Admin. Rec.
14. He concluded, however, that the impairment was “non-severe.”
Id. In particular, he found that claimant’s mental impairment
caused “mild limitation” in the relevant functional areas: daily
living, social functioning, and concentration, persistence or
pace. Id. Although the ALJ’s Step 2 discussion of claimant’s
mental impairment is detailed and thorough, he erred in finding
that claimant had not met the de minimus showing. Claimant’s
medical records disclose that she was being treated (including
with medications) for bipolar disorder, anxiety, and depression,
and was hospitalized in 2009 for suicidal ideation. See
Mohammad, 2011 WL 1706116, at *7 (de minimus burden at Step 2 was
9 met where claimant “was diagnosed . . . as having a seizure
disorder” and where “he was prescribed multiple anticonvulsant
medications.”).
But even accepting that the ALJ erred at Step 2 , that error
is harmless i f : the ALJ found at least one severe impairment,
Syms v . Astrue, Civil N o . 10-cv-499-JD, 2011 WL 4017870, at * 1
(D.N.H. Sept. 8 , 2011); the ALJ then “continued through the
remaining steps,” id.; and the evidence does not “demonstrate how
the error would . . . change the outcome of the . . . case.”
Bard v . Astrue, N o . 1:10-cv-220-JAW, 2011 WL 2559534, at *5
(D.Me. June 2 7 , 2011) (quotation omitted). Here, the ALJ at Step
2 found that Shaw suffered from the severe physical impairment of
degenerative disc disease. He then continued to proceed through
all remaining steps. In order for Shaw to prevail on her Step 2
argument, therefore, she must “point[…] to . . . evidence that”
the alleged Step 2 error relating to her mental impairment is
“outcome determinative.” Bard, 2011 WL 2559534, at * 5 .
Although the ALJ did not discuss Shaw’s mental impairment in
his RFC determination, he did pose two hypotheticals to the VE
which included mental limitations. The VE’s testimony in
response to those hypotheticals reveals that the ALJ’s Step 2
error is outcome determinative only if Shaw’s mental impairment
10 in fact caused “marked” limitations. Compare McCaffrey v .
Astrue, Civil Action N o . 10-cv-01943-PAB, 2011 WL 4536980, at *12
(D.Colo. Sept. 3 0 , 2011) (error at Step 2 not harmless where ALJ
failed to pose hypothetical to VE which included mental
limitations). The VE testified that “marked [mental]
impairment[s]” would preclude a person from performing “any
jobs.” Admin. Rec. 49-50. She also testified, however, that a
person with even “moderate [mental] impairments,” in combination
with claimant’s physical limitations, would still be able to do
the jobs the ALJ found Shaw could d o . Id. at 4 9 .
The critical question, then, is whether substantial evidence
in the record supports the ALJ’s determination that Shaw’s mental
impairment resulted in less than “marked” limitations. In
arguing that it does not, Shaw implicitly, and primarily,
challenges the ALJ’s assessment of her subjective complaints
regarding her mental limitations.2
B. Subjective Complaints
When a claimant demonstrates that her impairment could
reasonably be expected to produce the symptoms she alleges, the
2 Shaw’s brief does not explicitly state that she is challenging the ALJ’s determination that her subjective complaints about mental limitations are not wholly credible. But because that argument is implicit in Shaw’s overarching argument about the severity of her mental impairment, the court will address i t .
11 ALJ is required to determine the intensity, persistence, and
limiting effects of those symptoms. 20 C.F.R. § 404.1529(c). In
making that determination, the ALJ must evaluate the claimant’s
“statements about the effects of her symptoms . . . in light of
the medical evidence and other evidence such as precipitating and
aggravating factors, medications and treatment, and how the
symptoms affect the applicant’s daily living.” Syms v . Astrue,
Civil N o . 10-cv-499-JD, 2011 WL 2972122, at * 4 (D.N.H. July 2 1 ,
2011) (citing 20 C.F.R. § 404.1529(c)(3)). Moreover, “[p]art of
the ALJ’s credibility determination necessarily involves an
assessment of a claimant’s demeanor, appearance, and general
‘believability.’” Guerin v . Astrue, Civil N o . 10-cv-421-SM, 2011
WL 2531195, at *6 (D.N.H. June 2 4 , 2011).
1. Mental Impairment
Shaw asserts that her mental impairment results in marked
limitations. Most of the evidence she points to reflects her own
self-reporting to medical providers regarding her symptoms and
their effects, see Doc. N o . 1 2 , pgs. 5-8, and also includes her
testimony at the hearing, where she stated that she has anxiety
around people, nightmares, and PTSD from previous sexual abuse.
Admin. Rec. 38-41.
12 In discussing Shaw’s mental impairment at Step 2 , the ALJ
reviewed the evidence (including medical records and evidence of
Shaw’s daily activities), explained why he was according only
“minimal weight” to the opinion of Shaw’s treating psychologist,
Dr. Meghan Estey, and ultimately found Shaw’s allegations
regarding the severity of her mental limitations to be “less than
fully credible.” Admin. Rec. 1 5 . The ALJ relied on the opinion
of D r . Kathryn McNally, Psy.D., who met with Shaw and conducted
an independent psychological evaluation in January 2009. Dr.
McNally found that Shaw had no functional loss in daily
activities, social interactions, work related tasks, and work
related stress. D r . McNally also noted that Shaw was vague and
evasive regarding her symptoms and that her motivation for
treatment was poor. Admin. Rec. 1 5 . The ALJ also relied on the
opinion of Shaw’s examining physician, D r . John Walter, M.D.,
who, although noting that she “could have Post Traumatic Stress
Disorder based on her history,” Admin. Rec. 5 9 2 , “questioned
whether she suffered from bipolar disorder.” Admin. Rec. 1 5 . In
addition, D r . Walter described Shaw as being in good control of
her anxiety and depression. He noted that Shaw’s mental
impairments had been adequately treated since childhood with
counseling and medication. Admin. Rec. 422.
13 The ALJ also credited the State Agency physician, Edward
Martin, Ph.D., who opined in March 2009 “that the claimant’s
mental impairments were ‘not severe,’” in part because there was
“insufficient evidence to support her allegation.” Id. at 1 5 .
The ALJ also relied on Shaw’s own reports of daily activities,
noting that “by the claimant’s own report she is able to
function.” Id. at 1 5 . Although Shaw “becomes anxious
interacting with others and prefers to stay at home, she does
grocery shop, socialize, and drive; and she is able to manage her
finances.” Id. The ALJ also acknowledged Shaw’s hospitalization
for suicide “attempt”3 in July 2009 but noted that she was
“successfully treated” following that hospitalization. Admin.
Rec. 1 5 .
Lastly, the ALJ explained why he gave “minimal weight” to
the July 2009 opinion of Shaw’s treating psychologist, D r . Estey.
Dr. Estey opined that Shaw is unable to work because of mental
illness. The ALJ found that D r . Estey’s opinion “appears to be
based solely upon the subjective complaints of the claimant whom
I find to be less than fully credible.” Admin. Rec. 1 5 . He also
3 Shaw’ brief does not explicitly state that she is challenging the ALJ’s determination that her subjective complaints about mental limitations are not wholly credible. But because that argument is implicit in Shaw’s overarching argument about the severity of her mental impairment, the court will address i t .
14 found significant the fact that D r . Estey had been treating Shaw
“a mere three months prior to her July 2009 opinion.” Id.
Shaw complains that the ALJ ignored evidence which supports
her claim of marked mental limitations. Specifically, she notes
that the ALJ did not discuss a Global Assessment of Functioning
(GAF) score of 45 in 2010 and the April 2010 opinion of D r .
Pamela Olsson, M.D., that Shaw is unable to work “at this time”
due to “depression and anxiety.” Admin. Rec. 495. “A GAF score
of 45 indicates serious symptoms or impairment in social or
occupation functions.” Marcotte v . Callahan, 992 F. Supp. 485,
488 (D.N.H. 1997). Although a GAF may be of “considerable help”
in determining a claimant’s RFC, it is not “essential.” Howard
v . Commissioner of Social Security, 276 F.3d 235, 241 (6th Cir.
2002). Indeed, “[a] GAF score, standing alone, does not
necessarily indicate an inability to work or to perform specific
work-related functions.” LaFontaine v . Astrue, N o . 1:10-cv-527-
JAW, 2011 WL 4459197, at *4 (D.Me. Sept. 2 5 , 2011). Here, the
ALJ was entitled to consider the GAF score of 45 in the context
of all of Shaw’s medical records, some of which indicated GAF
scores of 50/55. A GAF score above 50 indicates moderate
symptoms or limitations. See Marcotte, 992 F. Supp. at 4 8 8 , n.4.
15 With respect to D r . Olsson’s opinion that Shaw is unable to
work, the Commissioner correctly points out that D r . Olsson’s
letter expressing that opinion is unaccompanied by treatment
notes.4 See 20 CFR § 416.927 (“The better an explanation a
source provides for an opinion, the more weight we will give that
opinion.”). Without more, the ALJ was entitled to discount the
opinion - an opinion on a matter reserved for the Commissioner.
See Arroyo v . Secretary of Health & Human Services, 932 F.2d 8 2 ,
89 (1st Cir. 1991) (“The ALJ was not required to accept the
conclusions of claimant’s treating physicians on the ultimate
issue of disability.”).
In sum, although the record establishes that Shaw was
treated numerous times for a mental condition, there is
substantial evidence in the record to support the ALJ’s
conclusion that her mental impairment has not resulted in marked
limitations.
4 The treatment notes from D r . Olsson in the record consist of one dated two months earlier (in which the doctor questioned whether Shaw had bipolar disorder, stating that her symptoms were “more consistent with depression and anxiety”), and one describing D r . Olsson’s examination of Shaw in June 2009 during her hospitalization for suicidal ideation. See Admin. Rec. 6 4 2 , 460.
16 2. Physical Impairment
In assessing Shaw’s residual functional capacity, the ALJ
concluded that she retained the ability to perform the full range
of light work, “allowing for performing the postural functions
occasionally.” Admin. Rec. 1 6 . The ALJ found that Shaw’s
medically determinable impairment of degenerative disc disease
could reasonably be expected to cause the symptoms she alleged.
Id. He further found, however, that Shaw’s “statements
concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are
inconsistent with [the ALJ’s] residual functional capacity
assessment.” Id. Shaw challenges this finding on the ground
that the ALJ failed to properly assess the credibility of her
subjective complaints of pain relating to problems in the
cervical and lumbar regions of her spine.
In 2010, after having received non-surgical pain management
treatment for several years, Shaw underwent two separate
surgeries — a cervical decompression and fusion and a lumbar
fusion. She alleges that she continues to experience disabling
pain despite the surgeries. “In evaluating a claimant's
subjective complaints of pain, the adjudicator must give full
consideration to all of the available evidence, medical and
other, that reflects on the impairment and any attendant
17 limitations of function.” Avery, 797 F.2d at 2 9 . Here, the ALJ
acknowledged Shaw’s subjective complaints of pain and her
allegation that “epidural steroid injections and neck and back
surgeries” have not been “helpful.” Admin. Rec. 1 6 . The ALJ
found that Shaw “does currently appear to have mild symptoms
related to her back impairment.” Id. He further found, however,
that her statements about the intensity, persistence, and
limiting effects of her pain were “not credible.” Id. He noted
that Shaw’s activities of daily living do not support her
allegation of disabling pain. Id. at 16-17.
The record also shows that, one year following Shaw’s
cervical decompression and fusion surgery, her doctor reported
that Shaw was “reasonably doing well with the cervical spine
. . . .” Admin. Rec. 654. Moreover, Shaw did not receive any
treatment or therapy for her cervical spine in the year following
the surgery. With respect to her lumbar surgery, Shaw was
observed, one day after that operation, “sitting on a bed side
chair, comfortably, and eating her dinner.” Admin. Rec. 648. It
was reported by her provider that “overall back pain is easier
than prior to surgery, despite post-op surgical pain.” She was
able to ambulate well with a walker and was discharged. Id. An
x-ray examination of her spine showed that the hardware was
18 intact and there were no complications or misalignments. Admin.
Rec. 649.
At most, there is a conflict in the record as to whether
Shaw experiences disabling pain. The ALJ was obligated to
resolve that evidentiary conflict, and did so in a manner that
finds substantial support in this record. Irlanda Ortiz, 955
F.2d at 769. The court finds, therefore, that the ALJ’s
conclusion that Shaw’s pain was not disabling, and his subsidiary
finding that her statements regarding her pain were not wholly
credible, are supported by substantial evidence.
Conclusion
For the foregoing reasons, claimant's motion to reverse the
decision of the Commissioner (document n o . 11) is denied. The
Commissioner's motion to affirm his decision (document n o . 15) is
granted. The Clerk of Court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
Steven J./McAuliffe Jnited States District Judge December 16, 2011
cc: Christopher J. Seufert, Esq. Kelie C. Schneider, Esq. Gretchen L. Witt, AUSA