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Kalloch v. Colvin

United States District Court, D. New Hampshire

March 24, 2016

James Kalloch, Claimant,
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant. Opinion No. 2016 DNH 065

          ORDER

          STEVEN J. McAULIFFE, District Judge.

         Pursuant 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.

         For the 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 this order.

         Factual Background

         I. Procedural History.

         In 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").

         Accordingly, 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 decision.

         Claimant 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.

         II. Stipulated Facts.

         Pursuant 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.

         Standard of Review

         I. "Substantial Evidence" and Deferential Review.

         Pursuant 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).

         This 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).

         II. The Parties' Respective Burdens.

         An 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 ...


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