United States District Court, D. New Hampshire
J. McAULIFFE, District Judge.
to 42 U.S.C. § 405(g) and 1383(c)(3), claimant, James
Kalloch, moves to reverse or vacate the Acting
Commissioner's decision denying his applications for
Disability Insurance Benefits under Title II of the Social
Security Act (the "Act"), 42 U.S.C. § 423, and
Supplemental Security Income Benefits under Title XVI of the
Act, 42 U.S.C. §§ 1381-1383c. The Acting Commissioner objects
and moves for an order affirming her decision.
reasons discussed below, claimant's motion is granted, in
part, and the Acting Commissioner's motion is denied. The
matter is remanded for further proceedings consistent with
2009, claimant filed applications for Disability Insurance
Benefits ("DIB") and Supplemental Security Income
("SSI"), alleging that he had been unable to work
since May 1, 2007, due to chronic illness, which included
Lyme disease and, later, Post-Treatment Lyme Disease
Syndrome. That application was denied and claimant requested
a hearing before an Administrative Law Judge
("ALJ"). Following the first hearing in this
matter, in May of 2011, the ALJ denied claimant's
applications for benefits. On appeal to this court (Laplante,
C.J.), claimant advanced two arguments. First, he asserted
that, at step two of the sequential analysis, the ALJ erred
in failing to conclude that he suffers from a
"severe" mental health impairment. The court
concluded that argument "does not appear to be
meritorious" but declined to address it in any detail.
As to claimant's second assertion - that the ALJ failed
to properly document her conclusion that claimant's
subjective complaints of disabling pain were less than fully
credible - the court was more receptive. Specifically, the
court concluded that remand was appropriate, so the ALJ might
more fully document her credibility finding, including
claimant's statements about disabling migraine pain.
Kalloch v. Astrue, 11-cv-522-JL, 2012 WL 4930986 (D.N.H.
Sept. 18, 2012) ("Kalloch I").
in April of 2013, claimant, his non-attorney representative,
and a vocational expert again appeared before the ALJ. But,
the ALJ decided she wished to obtain additional medical
evidence, so she sent claimant's medical records, as well
as a set of interrogatories, to an independent medical
expert, Dr. Charles Plotz. After Dr. Plotz submitted his
responses, the ALJ convened a third hearing, so claimant
might have the opportunity to cross examine the doctor.
Subsequently, in a decision dated April 17, 2014, the ALJ
again concluded that claimant was not disabled, as that term
is defined in the Act, at any time prior to the date of her
then filed a timely action in this court, asserting that the
ALJ's decision is not supported by substantial evidence.
Claimant then filed a "Motion for Order Reversing
Decision of the Commissioner" (document no. 13). In
response, the Acting Commissioner filed a "Motion for
Order Affirming the Decision of the Commissioner"
(document no. 15). Those motions are pending.
to this court's Local Rule 9.1, the parties have
submitted a statement of stipulated facts which, because it
is part of the court's record (document no. 20), need not
be recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
"Substantial Evidence" and Deferential Review.
to 42 U.S.C. § 405(g), the court is empowered "to enter,
upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing." Factual findings and
credibility determinations made by the Commissioner are
conclusive if supported by substantial evidence. See 42
U.S.C. §§ 405(g), 1383(c)(3). See also Irlanda Ortiz v.
Secretary of Health & Human Services, 955 F.2d 765, 769
(1st Cir. 1991). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). It is something less
than a preponderance of the evidence, so 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. 607, 620 (1966). See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
court's review of the ALJ's decision is, therefore,
both limited and deferential. The court is not empowered to
consider claimant's application de novo, nor may it
undertake an independent assessment of whether he is disabled
under the Act. Rather, the court's inquiry 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). Provided the ALJ's findings
are properly supported by substantial evidence, the court
must sustain those findings even when there may also be
substantial evidence supporting the contrary position. Such
is the nature of judicial review of disability benefit
determinations. See, e.g., Tsarelka v. Secretary of
Health & Human Services, 842 F.2d 529, 535 (1st Cir.
1988); Rodriguez v. Secretary of Health & Human
Services, 647 F.2d 218, 222 (1st Cir. 1981).
Parties' Respective Burdens.
individual seeking SSI and/or DIB 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 which has lasted or can be
expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). See also 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. 137,
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, by a preponderance of the
evidence, that his impairment prevents him from performing
his former type of work. See Gray v. Heckler, 760
F.2d 369, 371 (1st Cir. 1985); Paone v. Schweiker,
530 F.Supp. 808, 810-11 (D. Mass. 1982). If the claimant
demonstrates an inability to perform his previous work, the
burden shifts to the Commissioner to show ...