United States District Court, D. New Hampshire
JOSEPH A. DICLERICO, Jr., District Judge.
Michelle Lynn Frotten 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 disability insurance benefits and supplemental security income. In support of reversing the decision, Frotten contends that the Administrative Law Judge ("ALJ") erred in making the residual functional capacity and credibility assessments. The Acting Commissioner moves to affirm, arguing that substantial evidence supports both assessments.
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). Substantial evidence, however, "does not approach the preponderance-of-the-evidence standard normally found in civil cases." Truczinskas v. Dir., Office of Workers' Compensation Programs , 699 F.3d 672, 677 (1st Cir. 2012).
Frotten applied for social security benefits and supplemental security income on March 1, 2010, when she was forty-three years old. She alleged that she had been disabled since September 1, 2008, because of depression, diabetes, hypertension, obesity, sleep apnea, and back pain. She has a general equivalency degree and has worked part-time as a cook.
The medical record evidence shows that Frotten was diagnosed with type 2 diabetes in 2008 and that her diabetes was moderately controlled. Frotten received treatment and took medication for depression but continued to feel depressed. The records show that she was diagnosed as obese, as she was five feet six inches tall and weighed more than three hundred pounds.
Dr. John Crisp did a consultative examination of Frotten for the New Hampshire Division of Disability Service in October of 2010. Dr. Crisp noted that Frotten was taking medication for hypertension, diabetes, and depression and also noted that Frotten was working twenty-five hours a week as a cook. On examination, Dr. Crisp found no abnormalities and a normal range of motion that was restricted by obesity. Although she complained of intermittent back pain, Dr. Crisp found that Frotten was able to walk and was able to move well, except that her size made it difficult for her to get off of the examination table. Dr. Crisp diagnosed obesity, hypertension, low back pain with a normal x-ray, and sleep apnea due to obesity. He noted that Frotten had complaints related to her ability to stand for prolonged periods.
In November of 2010, Frotten told her treating physician, Dr. Kristin Vaughan, that her back was bothering her after walking and sitting. A scan of Frotten's lumbar spine, as interpreted by the radiologist, showed degenerative changes and/or postraumatic anterior wedging of the lower thoracic vertebrae. Frotten continued to complain of back pain at her doctor appointments and also said that she was having numbness in her legs. Frotten said that her back was painful when standing and that her pain was helped by taking Cymbalta and by sitting. Frotten reported to her doctors that she had a sedentary life style. An MRI of Frotten's lumbar spine was done on July 24, 2011, which showed multilevel degenerative disc and facet disease and moderate spinal canal stenosis.
In August of 2011, Frotten was examined by Dr. Ashton Stanton of Core Physiatry because of back pain that radiated to her left leg. She said that the pain was worse when standing and was alleviated by sitting and leaning forward. Dr. Stanton noted that Frotten had a sedentary activity level. Dr. Stanton found that Frotten's range of motion for extending her legs was severely restricted and was moderately restricted for side bending. He referred Frotten for a comprehensive and medically supervised physical therapy program.
Dr. Vaughan completed a physical impairment medical source statement in February of 2012. Dr. Vaughan stated that she had seen Frotten on a monthly basis for two and a half years. She diagnosed hypertension, diabetes, obesity, depression, and hyperlipidemia. Dr. Vaughan noted that Frotten's symptoms included back and leg pain, fatigue, and numbness in the feet when walking. Dr. Vaughan also noted Frotten's psychological issues due to depression and anxiety.
With respect to physical limitations, Dr. Vaughan stated that Frotten could sit, stand, and walk for less than two hours in an eight-hour day, that she would need to elevate her legs, and that she would require three to five unscheduled breaks of three to five minutes. She also gave her opinion that Frotten could only lift less than ten pounds, could rarely climb stairs, and could never crouch or climb ladders.
At the first hearing before an ALJ, held on October 6, 2011, Frotten appeared without a representative. After the ALJ explained the advantages of representation and medical opinion evidence to Frotten, the hearing was continued to allow Frotten time to find representation. The hearing was reopened on February 22, 2012, and Frotten was represented by an attorney.
Frotten testified that her back pain had gotten worse because of falls so that she could not walk without crying. She said that while working in her part-time job as a cook she was on her feet most of the day and that when she got home from work, she went to bed. The ALJ asked Frotten if she could do a job in which she could sit for most of the day and would not have to lift more than ten pounds during part of the day. Frotten responded that she ...