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Allard v. Colvin

United States District Court, D. New Hampshire

February 21, 2014

Kellie Allard
Carolyn W. Colvin, Commissioner, Social Security Administration. No. 2014 DNH 034.


JOSEPH N. LAPLANTE, District Judge.

Kellie Allard has appealed the Social Security Administration's denial of her application for Supplemental Security Income ("SSI"), which claimed an onset date (as amended) of July 2, 2010. An administrative law judge at the SSA ("ALJ") ruled that, while Allard suffered from severe impairments (bipolar disorder, anxiety disorder, personality disorder, and obesity), she retained the residual functional capacity ("RFC") for sedentary work with specified limitations, allowing her to perform jobs that exist in the national economy in significant numbers and, as a result, is not disabled. See 20 C.F.R. § 416.905(a). The Appeals Council later denied Allard's request for review of the ALJ's decision, see id. § 416.1479, so the ALJ's decision became the SSA's final decision on DP's application, see id. § 416.1481. Allard appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

Allard has filed a motion to reverse the decision, see L.R. 9.1(b)(1), challenging it as unsupported by substantial evidence. Specifically, Allard argues that the ALJ erred by (1) discrediting her claims of disabling symptoms, (2) giving little weight to the opinions of a nurse practitioner who treated Allard, and a psychologist who did not, and giving great weight to the opinion of a different non-treating psychologist instead, and (3) failing to consider the SSA's prior determination that Allard was, in fact, disabled.[1] The Commissioner of the SSA has cross-moved for an order affirming the decision, see L.R. 9.1(d), defending the ALJ's findings. As explained below, the court denies Allard's motion, and grants the Commissioner's.

1. Credibility of Allard's claimed symptoms

Allard testified at the hearing that her "sleep is so erratic that I never know if I'm going to get a full night's sleep" or "sleep at all, " causing her to "worry that I'm not going to get up on time" or "that I'll be tired all day." Noting that Allard had "alleged disabling limitations because of erratic sleep and bipolar disorder, " the ALJ found that Allard's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." The ALJ also found, however, that "the medical findings do not support the existence of limitations greater than" those incorporated in the ALJ's RFC determination, as well as that Allard's "statements concerning the intensity, persistent, and limiting effects of these symptoms are not credible to the extent they are inconsistent with [RFC] assessment." Again, that assessment was that Allard retained the RFC to perform sedentary work so long as it was "limited to simple, repetitive... tasks, assuming normal work breaks over an eight hour day, where there is only simple decisionmaking or judgment required, where there is [ sic ] few, if any workplace changes, where there is no production rate or pace work, and where there is only occasional interaction with the public."

This ALJ's analysis of Allard's claimed sleep problems was consistent with SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (S.S.A. 1996). 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 the symptoms he or she claims?; (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?" Scanlon v. Astrue, 2013 DNH 088, 11 (quotation marks omitted). The ALJ properly followed this procedure in finding that Allard's testimony as to her sleep disturbances was not entirely credible.

Specifically, the ALJ found that

treatment notes [from Jennifer Ganem, a nurse practitioner who treated Allard] revealed some difficulty in sleeping at times [but] those difficulties were short lived and attendant [to] changes in [her] medications. Overall, the record reflects that [Allard] slept soundly for approximately five hours a night. Moreover, [she] stated to examining physician John C. Gorman, MD of Nashua Rheumatology that she sleeps well and feels refreshed upon awakening while on Trazadone.

(record citations omitted). Allard argues that the ALJ arrived at this conclusion only by "cherry-picking certain terms in the reports while ignoring [their] essence" or, as she describes it later in her motion, their "spirit." In the court's view, however, the ALJ acted within her discretion in rejecting, as not credible, Allard's statement that she was disabled by her erratic sleep, because there is substantial evidence-including, but not limited to, Ganem's treatment notes-to support that finding.

First, the ALJ fairly characterized Ganem's treatment notes. Allard saw Ganem on a regular basis (on average, every other month or so) for a roughly two-year span, between July 2009 and June 2011. Each time, Allard reported she had been sleeping soundly for around 5 hours a night, with the exception of two periods: consecutive visits in February and April 2010 and a series of four visits in February and March 2011.[2] After this first period of sleep difficulty, however, Allard reported, in June 2011 (having not sought treatment from Ganem since March) that she had been "sleeping soundly" for around 5 hours a night, though she "continu[ed] to be tired." Allard did not see or call Ganem again until September 2010, when she again reported 5 hours of sound sleep each night and made no complaint of fatigue. After the second period of sleep difficulty, Allard reported, in April 2011, that she had been "sleeping soundly" for at least 5 hours a night; while she also complained of feeling "tired all day, " at her next visit to Ganem, in May 2011, Allard described her sleep as both "sound" and "very nice." So the ALJ supportably found that Ganem's notes reflected merely "some difficulty in sleeping at times" and that, in general, Allard "slept soundly for approximately five hours a night."

Second, the ALJ also accurately found that Allard had told John Gorman, a rheumatologist she visited in late May 2011, that "she sleeps well on the trazadone"-one of the drugs, she reported, that had "straightened out" her bipolar disorder-and that she "feels refreshed upon awakening" (though she also reported "variable [morning] stiffness and daytime fatigue"). Of course, "[o]ne strong indication of the credibility of an individual's statements is their consistency... with other information in the case record.... Especially important are statements made to treating or examining medical sources." SSR 96-7p, 1996 WL 374186, at *5. Yet Allard's motion does not meaningfully address the ALJ's reliance on the report of the visit to Gorman.[3]

Third, the ALJ also found that, in Allard's testimony at the hearing, she had "described daily activities that are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." In particular, the ALJ noted that Allard testified to driving, grocery shopping, cooking, sweeping, making the beds, and washing dishes and clothes, as well as to socializing with friends.[4] While Allard argues that this inaccurately characterizes her statements at the hearing, this argument relies principally on her testimony that her activities were more limited on what Allard called her "bad days, " which she estimated to be three days every week.[5] The ALJ specifically addressed this testimony in her decision, however, noting that this "limitation is not supported in the record and cannot be objectively verified with any reasonable degree of certainty." Allard does not question this reasoning in her motion.

The ALJ further observed that "Allard was apparently able to care for her thirteen year old daughter at home." Allard argues that "nothing within the four corners of the ALJ's decision supports this finding, " nor the conclusion that "living in a condominium with a thirteen year old daughter represents an activity of daily living inconsistent with the existence of a disabling condition." But Allard herself testified that she lives, alone, with her 13-year old daughter, and that, while her daughter made herself breakfast and "was supposed to" do the dishes and the sweeping, Allard would "sometimes" wash the dishes, "usually" did the sweeping, and would also wash her daughter's clothes and drive her to basketball. In fact, Allard described herself as "the maid." Furthermore, the ALJ did not rely on the evidence of Allard's activities in caring for her daughter to find that Allard was not disabled, but, rather, to find that her complaints of disabling ...

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