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Deborah A. Mitchell v. Michael J. Astrue

March 13, 2012


The opinion of the court was delivered by: Paul Barbadoro Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 054


Deborah Mitchell seeks review of a decision by the Commissioner of the Social Security Administration denying her application for disability insurance benefits. Mitchell alleges that the decision is not supported by substantial evidence, and that the Administrative Law Judge who heard her case erred in weighing the medical opinion evidence and in assessing her credibility. For the reasons provided below, I reverse the Commissioner's decision and remand the case for further proceedings consistent with this Memorandum and Order.


Mitchell filed an application for disability insurance benefits on August 8, 2008, when she was 42 years old. She claimed that her disability began on May 10, 2007, and was due to chronic pain in her neck, right arm, and back. Mitchell has a high school education and she worked as a school bus driver for 19 years.

Mitchell's claim was denied on October 31, 2008. She requested a hearing, and after appearing and testifying on April 21, 2010, her claim was again denied by an Administrative Law Judge ("ALJ"). The Decision Review Board ("DRB") selected Mitchell's case for review, and affirmed the ALJ's decision on September 7, 2010. Although the DRB indicated that the ALJ may have erred in determining that Mitchell could perform her past relevant work as a bus driver, it agreed with the ALJ's alternative finding that Mitchell could perform other work in the national economy. Accordingly, the ALJ's decision became the final decision of the Commissioner.

A. Medical History

1. Treatment Summary

In February 2005, Mitchell began to receive treatment for pain in her neck and back that would occasionally radiate into her arms and legs. Her doctors noted that the pain was likely caused by the repetitive nature and poor ergonomics of her job.

Examinations revealed structural damage to her back,*fn2 and after prescription medications and a course of physical therapy and massage failed to afford Mitchell substantial relief, she underwent disc surgery in June 2005.

Although the surgery helped to alleviate some of her symptoms, Mitchell continued to seek treatment for pain across her back, neck, arms, and legs, as well as for problems sleeping due to the pain. She reported that basic activities, such as sitting, standing, driving, and doing household chores, aggravated her symptoms. Her medical treatment providers administered numerous injections, directed her to undergo physical therapy, and prescribed medications and equipment to ease her pain. Through the date of her hearing, Mitchell continued to see her treatment providers on a regular basis. Their notes reveal that Mitchell reported varying levels of pain, ranging from mild to moderate levels during good times to excruciating levels at the worst times. By 2008, Mitchell was regularly taking narcotics, such as Vicodin and Percocet, to ameliorate her pain and allow her to function.

2. Work Limitations Noted by Treatment Providers Dr. Alison Baker and her physician's assistant, Stefanie Diamond, both of whom treated Mitchell over a period of years, would regularly note their opinions about Mitchell's current work capability on Workers' Compensation forms and other medical records. In addition to specifying certain physical limitations, they noted that Mitchell was capable of working only up to a certain number of hours per week. The number of hours would often change, depending on Mitchell's current condition, but was never greater than 30 per week.

In June 2009, William Dooley, a physical therapist, performed a functional capacity evaluation ("FCE"). He noted that Mitchell gave a full physical effort and that her subjective reports of pain and disability were reasonable and reliable. His testing showed that Mitchell's work capacity allowed for occasional sitting, standing, and walking, and that she had the ability to lift 10 pounds occasionally. She had a limited tolerance for doing work above her head and an occasional tolerance for work up to the level of her shoulder. The test results did not demonstrate an ability to perform her past work as a bus driver.

After reviewing Mr. Dooley's FCE shortly after it was performed, Dr. Baker stated her opinion that Mitchell had the capability to work for 4 hours a day, 5 days a week. Approximately 3 months later, in September 2009, Dr. Baker completed a Medical Source Statement of Ability to Do Work-Related Activities. Dr. Baker noted that Mitchell could occasionally lift and carry up to 20 pounds; could sit for 30-45 minutes at a time and up to 2 hours total in an 8-hour workday; could stand for 30-45 minutes at a time and up to 2 hours in an 8-hour workday; and could walk for 20 minutes at a time and up to 1-2 hours in an 8-hour workday. She limited Mitchell to occasional performance of various postures and manual activities. Dr. Baker also noted that Mitchell informed her that she needed to recline 3-5 times each day for 30-45 minutes and to change positions every 30-45 minutes.

The notes and forms filled out by Dr. Baker and Ms. Diamond show that their opinions of Mitchell's work capabilities did not subsequently change. In April 2010, Dr. Baker indicated that Mitchell's functional capacity remained the same as she had indicated in her June assessment, and Ms. Diamond indicated that Mitchell's functional capacity remained the same as had been set forth in the FCE.

In addition to her treating medical sources, Dr. Hugh Fairley, the consultative state agency doctor, provided an opinion concerning Mitchell's residual functional capacity ("RFC"). His analysis was conducted in October 2008, and he identified Mitchell's diagnoses as cervico-thoracic degenerative disease and myofascial pain.*fn3 Dr. Fairley stated that Mitchell could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour workday; and sit about 6 hours in an 8-hour workday. In his ...

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