United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
John Willard Graves, II seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying his application for social security disability insurance benefits. In support, Graves argues that the Administrative Law Judge ("ALJ") erred in determining that he did not meet or medically equal a listed impairment, erred in assessing the medical opinion evidence, and erred in making the residual functional capacity assessment. The Acting Commissioner moves to affirm. For the reasons that follow, I recommend that this matter be remanded to the Commissioner for further proceedings consistent with this Report and Recommendation.
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).
Graves applied for disability insurance benefits in January of 2012, alleging that he had been disabled since July 6, 2007, due to the effects of Crohn's disease, colitis, thoracic outlet syndrome, scoliosis, and disc problems in his back. He was twenty-eight when he applied for benefits and had completed a GED. Graves last worked in 2007 as a heavy machine operator and dump truck driver.
The medical records begin in October of 2009 when Graves visited his treating doctor, Franklin R. Hubbell, D.O., because of back pain that arose after Graves pulled a tree stand, used for hunting, through the woods. Dr. Hubbell found that Graves had scoliosis. On examination, Graves's gait and straight leg tests were normal. Subsequent treatment notes show complaints of back pain without radiation of pain, weakness, abnormal gait, or positive straight leg tests.
Graves was treated by Dr. Benjamin Potter at Portland (Maine) Gastroenterology Center for his longstanding and complicated Crohn's disease. In January of 2010, Dr. Potter noted that Graves also complained of back pain which correlated with activity of Crohn's disease. Over the next year and a half, the records show continued treatment for Crohn's disease, and that Graves did well with medication and appropriate diet.
State agency reviewing physician Louis Rosenthall, M.D., reviewed Graves's medical records and assessed his impairments based on those records. Dr. Rosenthall issued his opinion on May 11, 2012, finding that Graves had Crohn's disease and right thoracic outlet syndrome which were not severe enough to meet a listed impairment and that there was no medical evidence of a disc problem other than scoliosis. Dr. Rosenthall found that Graves retained the physical capacity to do light work, with some other limitations.
After Graves had x-rays done of the thoracic and lumbar spine in May of 2012, the radiologist who interpreted them suggested that Graves have an MRI. Dr. Hubbell saw Graves the same day and ordered an MRI of the thoracic and lumbar spine to assess the discs and look for nerve root compression. MRIs were done on June 6, 2012. The radiologist who interpreted the results did not find spinal cord or nerve root compromise in the thoracic area. In the lumbar MRI, however, the radiologist noted spondylosis "with resultant disc uncovering, " and "foraminal narrowing bilaterally, likely more severe on the right side, likely compromising the L5 nerve root." He concluded that the results were similar to what was shown in 2008, which included "right L5 nerve compromise."
On September 1, 2012, Dr. Hubbell completed questionnaires about Graves's impairments and functional abilities. Dr. Hubbell identified impairment due to spinal disorders, including evidence of nerve root compression and neuro-anatomic distribution of pain. On another questionnaire, Dr. Hubbell also identified Graves's diagnoses to include Crohn's disease. Dr. Hubbell found that Graves's ability to function was significantly limited by pain so that he could sit, stand, or walk for less than two hours in a work day, would need unscheduled breaks, and could lift less than ten pounds.
A hearing was held on May 21, 2013, and Graves and a vocational expert testified. Graves described the effects of Crohn's disease both as to pain and the need to use the bathroom frequently. He said that his back pain was constant and interfered with his activities. The ALJ issued his decision on June 6, 2013, finding that Graves was not disabled. The Appeals Council denied review on June 24, 2014.
Graves contends that the Acting Commissioner's decision must be reversed and remanded because the ALJ erred in finding that his spinal scoliosis and arthritis did not meet or medically equal Listing 1.04,  improperly gave more weight to Dr. Rosenthall's opinion than to Dr. Hubbell's opinion, and erred in making a residual functional capacity assessment without a supporting medical opinion. The ...