Torrey v . SSA CV-03-293-M 01/21/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karen M . Torrey, Claimant
v. Civil N o . 03-293-M Opinion N o . 2004 DNH 017 Jo Anne B . Barnhart, Commissioner, Social Security Administration, Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Karen Torrey,
challenges the Commissioner’s decision denying her application
for Supplemental Security Income Payments under Title XVI of the
Social Security Act, 42 U.S.C. § 1382 (the “Act”). Respondent
objects and moves for an order affirming her decision.
For the reasons set forth below, the matter is remanded to
the Administrative Law Judge (“ALJ”) for further proceedings
consistent with this opinion. Factual Background
I. Procedural History.
In May of 2001, claimant filed an application for
supplemental security income payments, alleging that she had been
unable to work since May 2 2 , 2001, due to degenerative disc
disease, arthritis, asthma, depression, and a learning
disability. The Social Security Administration denied her
application. That denial of benefits permitted claimant to
immediately request a hearing before an ALJ, which she did.
Accordingly, on July 2 4 , 2002, claimant, her attorney, and a
vocational expert appeared before an ALJ who considered her
claims de novo.
The ALJ issued his order on December 3 , 2002, concluding
that claimant was subject to some exertional and non-exertional
limitations and incapable of returning to her past relevant work.
Nevertheless, the ALJ concluded that claimant was able to perform
work that exists in significant numbers in the national economy
and was not, therefore, disabled. The Appeals Council denied
claimant’s request for review, thereby rendering the ALJ’s
decision the final decision of the Commissioner.
2 In response, claimant filed this timely action, asserting
that the ALJ’s decision is not supported by substantial evidence.
She then filed a “Motion for Order Reversing the Decision of the
Commissioner” (document n o . 4 ) . 1 The Commissioner objected and
filed a “Motion for Order Affirming the Decision of the
Commissioner” (document n o . 5 ) . Those motions are pending.
II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
comprehensive statement of stipulated facts which, because it is
part of the court’s record (document n o . 6 ) , need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Factual 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
1 Although captioned as a motion to reverse the decision of the Commissioner, claimant actually moves the court to remand this matter to the ALJ for further inquiry into her residual functional capacity. See Claimant’s memorandum at 5 .
3 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. See 42 U.S.C.
§ 1383(c)(3); Irlanda Ortiz v . Secretary of Health & Human
Services, 955 F.2d 765, 769 (1st Cir. 1991). 2
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.
Accordingly, the court will give deference to the ALJ’s
credibility determinations, particularly where those
2 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).
4 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)).
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 has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C.
§ 1382c(a)(3). The Act places a heavy initial burden on the
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, the 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, the claimant is not required to
5 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).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective assertions of pain
and disability, as supported by the testimony of the claimant or
other witnesses; and (3) the 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. Provided the claimant has shown 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, 683 F.2d 1 , 2 (1st Cir. 1982). If the
Commissioner shows the existence of other jobs that the claimant
can perform, then the overall burden to demonstrate disability
remains with the 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).
6 When determining whether a claimant is disabled, the ALJ is
required to make the following five inquiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 416.920. Ultimately, a claimant is disabled only if
her:
physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
7 With those principles in mind, the court reviews claimant’s
motion to remand this proceeding to the ALJ and the
Commissioner’s motion to affirm the determination that claimant
is not disabled.
Discussion
I. Background - The ALJ’s Findings.
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step sequential evaluation process described in 20 C.F.R.
§ 416.920. Accordingly, he first determined that claimant had
not been engaged in substantial gainful employment since March
2 2 , 2001 (her alleged onset of disability). Next, the ALJ
determined that the medical evidence of record indicates that
claimant does suffer an impairment or combination of impairments
considered to be “severe” under the pertinent regulations -
specifically, a cardiac condition and asthma. Nevertheless, he
concluded that claimant possesses a residual functional capacity
(“RFC”) that permits her to perform a range of light work,
provided she is permitted to alternate between a seated and
standing position and assigned to perform non-complex tasks.
8 Additionally, due to her non-exertional limitations, she must
avoid concentrated dust and/or fumes and poor ventilation and is
modestly limited in her ability to get along well with co-workers
and to respond appropriately to criticism.
In light of those restrictions on claimant’s ability to
work, the ALJ determined that she could not return to any of her
past relevant occupations. Nevertheless, he concluded that
claimant did have the RFC to perform a significant range of light
work that is available in substantial numbers in the national
economy. Accordingly, at step five of the sequential analysis,
the ALJ determined that claimant was not “disabled,” within the
meaning of the Act.
II. Claimant’s Assertion of Error.
In her motion seeking an order remanding this proceeding to
the ALJ, claimant says the ALJ erred by “failing to consult with
a medical expert where the record was devoid of any analysis of
functional capacity by a physician or other expert.” Claimant’s
memorandum at 4 . Specifically, claimant says the ALJ “relied
upon a physical residual functional capacity assessment rendered
9 by Linda Ellsworth, a claim adjudicator at Disability
Determination Services,” id., a person who, according to
claimant, is not an “acceptable medical source” under the
pertinent regulations.
The Commissioner, on the other hand, says the ALJ’s
determination of claimant’s RFC is entirely consistent with the
medical evidence of record and the reports prepared by claimant’s
various treating (and non-treating) professionals. Consequently,
the Commissioner asserts that, under the circumstances presented
in this case, the ALJ did not “overstep his bounds as a lay
person [by] render[ing] a judgment on the raw medical data.”
Commissioner’s memorandum at 6. On this record, and in light of
the ALJ’s written decision, the court cannot agree.
Claimant rests her motion to remand largely upon language
quoted from an opinion issued by the United States District Court
for the District of Massachusetts, in which the court noted:
“Where an ALJ reaches conclusions about claimant’s physical exertional capacity without any assessment of RFC by a physician, the ALJ’s conclusions are not supported by substantial evidence and it is necessary
10 to remand for the taking of further fuctiona[l] evidence.”
Brown v . Chater, 927 F. Supp. 1 0 , 16 (D. Mass. 1996) (quoting
Perez v . Secretary of Health & Human Services, 958 F.2d 445, 446
(1st Cir. 1991)). As further support for her argument, claimant
points to a more recent opinion from the Court of Appeals, in
which the court observed that, “[w]ith few exceptions (not
relevant here), an ALJ, as a lay person, is not qualified to
interpret raw data in a medical record.” Manso-Pizarro v .
Secretary of Health & Human Services, 76 F.3d 1 5 , 17 (1st Cir.
1996) (citing Perez, 958 F.2d at 4 4 6 ) . That court went on to
observe that:
Of course, where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician’s assessment. But when, as now, a claimant has sufficiently put her functional inability to perform her prior work in issue, the ALJ must measure the claimant’s capabilities, and to make that measurement, an expert’s RFC evaluation is ordinarily essential unless the extent of functional loss, and its effect on job performance, would be apparent even to a lay person.
Manso-Pizarro, 76 F.3d at 17 (citations and internal punctuation
omitted). Ultimately, the court concluded that if the record
11 evidence “suggests a relatively mild physical impairment posing,
to the layperson’s eye, no significant exertional restrictions,
then [the court] must uphold the ALJ’s finding [of no
disability]; elsewise, we cannot (in the absence of an expert’s
opinion).” Id. at 17-18.
III. The ALJ’s Decision and the Record Evidence.
A claimant’s residual functional capacity, or RFC,
represents “an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing bases. A ‘regular and
continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.” Social Security Ruling (“SSR”) 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*1 (July 2 , 1986). A claimant’s RFC is determined based upon a
review of “all of the relevant evidence in the case record,
including information about the individual’s symptoms and any
‘medical source statements’ - i.e., opinions about what the
individual can still do despite his or her impairment(s) -
12 submitted by an individual’s treating source or other acceptable
medical sources.” Id. at * 2 . See also 20 C.F.R. § 416.945.
When determining a claimant’s functional capacity, an ALJ
must consider, among other things:
medical history, medical signs and laboratory findings, the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication), reports of daily activities, lay evidence, recorded observations, medical source statements, effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment, evidence from attempts to work, need for a structured living environment, and work evaluations, if available.
SSR 96-8p, 1996 WL 374184 at * 5 . And, importantly, the ALJ’s
decision must include a discussion describing how he or she
actually determined the claimant’s RFC and the evidence upon
which he or she relied.
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC the adjudicator must discuss the individual’s ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis . . . . The
13 adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.
Id. at *7 (emphasis supplied).
Here, although the ALJ’s opinion correctly identifies the
relevant factors that must be considered, it fails to discuss
those factors or explain how they support his ultimate
conclusion. There i s , for example, no discussion of claimant’s
activities of daily living. Nor is there any mention of the
effect upon claimant’s ability to perform work-related tasks by
the symptoms reasonably attributed to her impairments. In fact,
although the ALJ appears to have (implicitly) adopted the
findings set forth in the physical residual functional capacity
assessment prepared by M s . Ellsworth, that report is not
discussed (or even mentioned) in the ALJ’s decision.
Given the fact that none of claimant’s treating physicians
expressed an opinion as to her functional capacity and in light
of the ALJ’s failure to discuss the other factors relevant to
that inquiry, the most sensible approach is to remand this matter
to the ALJ for further findings and likely a physical residual
14 functional capacity assessment, completed by one (or more) of
claimant’s treating sources.
Conclusion
There i s , to be sure, evidence in the record which suggests
that claimant i s , as one of her treating physicians observed,
“not motivated to get better.” Transcript at 233. There is also
some suggestion, based upon the results of her personality
testing, that she may be “exaggerating her symptoms for secondary
gain.” Id. at 187. Alternatively, however, it is possible that
she is “in such distress that she is using the [personality] test
as a ‘cry for help,’ to emphasize how much psychological pain she
is in.” Id. There is also some question as to whether or not
claimant has been fully compliant with the treatment prescribed
by her doctors (at least as it relates to weight loss and smoking
cessation, given her long history of asthma, her obesity, and the
extent to which those conditions appear to contribute to her
disability). See generally 20 C.F.R. 416.930 (“In order to get
benefits, you must follow treatment prescribed by your physician
if this treatment can restore your ability to work”). See also
Progress notes completed by D r . Christina Anderson, transcript at
15 190 (opining that, as of September 2001, “none of these
conditions in [claimant] are disabling [in the long term]. All
are treatable.”).
Nevertheless, it is clear that claimant does presently
suffer from “severe” impairments that might well preclude her
from performing any work that exists in the national economy.
Unfortunately, however, the record is insufficiently developed
(particularly with regard to claimant’s RFC) to accurately assess
whether the ALJ’s disability determination is supported by
substantial evidence. If presented with a different record,
which more clearly supported the ALJ’s assessment of claimant’s
RFC, it might be possible to affirm his denial of benefits,
notwithstanding his reliance upon a “Physical Residual Functional
Capacity Assessment” form completed by someone other than an
acceptable medical source. But, for the reasons noted above,
that is not possible on the current record; it is simply unclear
what effect claimant’s impairments have on her “ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing bases.” SSR 96-8p, 1996 WL
374184 at * 1 .
16 Accordingly, pursuant to sentence four of 42 U.S.C.
§ 405(g), this matter is remanded to the ALJ so that he might
more fully consider (and discuss) the evidence of record
concerning claimant’s residual functional capacity, and, if he
deems appropriate, to obtain a “Physical Residual Functional
Capacity Assessment” form from one or more of claimant’s treating
sources.
Claimant’s motion to reverse the decision of the
Commissioner (document n o . 4 ) is granted to the extent it seeks
remand of this matter to the ALJ. In all other respects, it is
denied. The Commissioner’s motion for an order affirming her
decision (document n o . 5 ) is denied. The Clerk of the Court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 2 1 , 2004
cc: David LL.. Broderick, Esq. D. Lance Tillinghast, Esq.