United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge.
Douglas is a thirty-nine year old woman who previously worked
as a cashier and a companion. Douglas challenges the Social
Security Administration's denial of her claims for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The Social
Security Commissioner seeks to have the rulings affirmed.
accordance with Local Rule 9.1, the parties have submitted a
joint statement of stipulated facts (Doc. No. 14). Because
that joint statement is part of the court's record, I do
not recount it here. I discuss facts relevant to the
disposition of this matter as necessary below.
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), I have the authority to review
the administrative record and the pleadings submitted by the
parties, and to enter judgment affirming, modifying, or
reversing the final decision of the Commissioner. That review
is limited, however, “to determining whether the
[Administrative Law Judge] used the proper legal standards
and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm'r of Soc. Sec.,
211 F.3d 652, 655 (1st Cir. 2000). I defer to the
Administrative Law Judge's (ALJ's) findings of fact,
so long as those findings are supported by substantial
evidence. Id. Substantial evidence exists “if
a reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion.” Irlanda Ortiz v. Sec'y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per
curiam) (quoting Rodriguez v. Sec'y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
substantial evidence standard is met, the ALJ's factual
findings are conclusive, even where the record
“arguably could support a different conclusion.”
Id. at 770. Findings are not conclusive, however, if
the ALJ derived his findings by “ignoring evidence,
misapplying the law, or judging matters entrusted to
experts.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (per curiam). The ALJ is responsible for
determining issues of credibility and for drawing inferences
from evidence in the record. Irlanda Ortiz, 955 F.2d at 769.
It is the role of the ALJ, not the court, to resolve
conflicts in the evidence. Id.
applied for DIB and SSI in March 2009, alleging disability as
of July 2007. Doc. No. 14 at 1. She later amended her alleged
onset date to January 1, 2010. Id. Douglas's
applications were denied in September 2011. Id.
After an appeal to this court, Douglas's case was
remanded for further proceedings. Id.
administrative law judge (“ALJ”) held another
hearing in June 2014, at which Douglas further amended her
alleged onset date to January 1, 2011. Id. At that
hearing, a vocational expert and Douglas, represented by
counsel, both testified. Tr. at 1025-52 (hearing transcript).
The ALJ then issued a written decision in August 2014,
concluding that Douglas was not disabled. Tr. at 1001-16.
evaluated Douglas's claims under the five-step sequential
process outlined in 20 C.F.R. §§ 404.1520(a) and
416.920(a). At step one, the ALJ found that Douglas had not
engaged in substantial gainful employment since January 1,
2011, her amended alleged onset date. Tr. at 1004. The ALJ
determined at step two that Douglas had severe impairments of
obesity and degenerative disc disease of the lumbar spine.
Tr. at 1005. At step three, the ALJ found that Douglas's
impairments did not meet or medically equal any of the listed
impairments. Tr. at 1009. Then, after calculating
Douglas's residual functional capacity
(“RFC”), the ALJ concluded at step four that
Douglas was able to perform her past work as a cashier and
companion. Tr. at 1015. In the alternative, the ALJ
determined at step five that Douglas could perform jobs that
exist in significant numbers in the national economy. Tr. at
1015. The ALJ therefore found that Douglas was not disabled.
Tr. at 1016.
2015, the Appeals Council denied Douglas's request to
review the ALJ's decision. Tr. at 985-88. As such, the
ALJ's decision constitutes the Commissioner's final
decision, and this matter is now ripe for judicial review.
Douglas argues that a remand is required for two principal
reasons: (1) the ALJ erred in determining Douglas's
residual functional capacity, and (2) the ALJ improperly
relied on certain vocational expert testimony. I address each
issue in turn.
Residual Functional Capacity Arguments
contends that the ALJ erred in assessing her RFC. A
claimant's RFC is “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). The ALJ must
assess a claimant's RFC “based on all of the
relevant medical and other evidence.” See 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). On appeal, I
determine whether the assigned RFC is supported by
substantial evidence. Irlanda Ortiz, 955 F.2d at 769.
case, the ALJ found that Douglas has the RFC “to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she could occasionally climb, balance,
stoop, kneel crouch or crawl.” Tr. at 1010. In formulating
the RFC, the ALJ recognized Douglas's severe impairments
of obesity and degenerative disk disease. Tr. at 1011. He
also noted “EMG testing that showed evidence of lumbar
radiculopathy.” Tr. at 1011. The ALJ concluded that
“[a]lthough [Douglas] subjectively alleges significant
symptoms and work-related functional limitations from her
combination of impairments, the record as a whole fails to
support her alleged limitations as described.” Tr. at
1011. In particular, Douglas's treatment history and the
“limited objective scans or testing” on record
did not support the alleged limitations. See Tr. at 1011-12.
The ALJ further described evidence adversely affecting
Douglas's credibility. Tr. at 1012-13.
did not include any non-exertional limitations in the RFC.
Tr. at 1010. In his step two analysis, the ALJ discussed
Douglas's subjective reports of depression, manic
symptoms, anxiety, and obsessive compulsive disorder. Tr. at
1005. After overviewing Douglas's “objective
clinical presentation” and evaluating several opinions
on her mental health, the ALJ concluded that
“[Douglas's] mental health conditions do not more
than minimally affect [her] ability to engage in substantial
gainful activity.” Tr. at 1007-1008. The RFC assessment
contains two additional references to opinions on
Douglas's mental health. Tr. at 1013-14. Douglas
challenges the ALJ's RFC assessment on several grounds.
Reliance on Dr. Jaffe's Opinion
first argues that the ALJ erred by relying on the opinion of
Dr. Jonathan Jaffe. See Doc. No. 10-1 at 5-6. Dr. Jaffe, a
state medical consultant, prepared a “Physical [RFC]
Assessment” of Douglas in May 2009. See Tr. at 578,
585, 1013. In relevant part, Dr. Jaffe opined that Douglas
could occasionally lift 20 pounds, could frequently lift 10
pounds, and could stand or walk for “about 6 hours in
an 8-hour workday.” Tr. at 579. Dr. Jaffe limited
Douglas to only occasionally climbing, balancing, stooping,
kneeling, crouching and crawling. Tr. at 580.
provides two reasons why the ALJ's reliance on Dr.
Jaffe's opinion was erroneous. First, she points to the
ALJ's statement in his decision that only evidence that
is dated within 12 months of a claimant's alleged onset
date is material to a DIB claim and argues that the ALJ
failed to act consistently with this statement by considering
Dr. Jaffe's opinion because the opinion predated
Douglas's amended onset date by approximately 1-1/2
years. See Doc. No. 10-1 at 5. Second, she argues that the
ALJ should not have relied on Dr. Jaffe's opinion because
it fails to account for subsequent medical evidence that
bears on Douglas's RFC. See Id. at 5-6. I
address each argument in turn.
first argument fails because it is based on the mistaken
premise that an ALJ may not consider medical evidence that
predates a claimant's onset date by more than a year. The
ALJ based his statement to this effect on the Social Security
Administration's Hearings, Appeals, and Litigation Law
Manual (“HALLEX”). See Tr. at 1001.
I-2-6-58 (A), the section the ALJ referenced in this case,
provides that an ALJ “will generally admit into the
record any information he or she determines is
material.” HALLEX I-2-6-58 (A). “Information is
material if it is relevant, i.e., involves or is directly
related to issues being adjudicated.” Id.
After defining materiality, HALLEX lists “examples of
information that may be material, ” including
“[e]vidence dated within 12 months of the alleged onset
date under” a DIB claim and “[e]vidence dated on
or after the application date” of a SSI claim.
misread HALLEX I-2-6-58 (A) because, by its own terms, it
merely offers examples of evidence that may be considered
material without categorically determining evidence to be
immaterial simply because it does not fit within a listed
example. Because HALLEX 1-2-6-58 (A) does not bar the ALJ
from considering Dr. Jaffe's opinion, the ALJ did not err
in relying on the opinion even though it predated
Douglas's alleged onset date by more than a
Impairments arising after Dr. Jaffe's opinion
next claims that the ALJ erred in relying on Dr. Jaffe's
opinion because it did not account for impairments that arose
or were diagnosed after he issued the opinion. See Doc. No.
10-1 at 5-6. Douglas apparently alleges that Dr. Jaffe did
not consider Douglas's plantar fasciitis, right
trochanteric bursitis, degenerative disc disease, or
radiculopathy. See Id. at 5-6, 8. The record also
includes x-rays, EMG testing, and an MRI performed and
interpreted after Dr. Jaffe produced his opinion. See
Id. at 6-8; Tr. at 865, 920, 923.
February 2011, Dr. Jonathan Warach opined that an
“electrophysiologic test of the lower left extremity
reveal[ed] evidence of lumbar radiculopathy or
polyradiculopathy most prominently affecting the L5 and S1
segments.” Tr. at 803. In June 2011, Dr. Peter
Dirksmeier reviewed contemporaneous x-rays of Douglas's
“lumbrosacral spine” and saw “what
appear[ed] to be disc space narrowing at ¶ 5-S1 which
[was] mild.” Tr. at 923. Dr. Dirksmeier also ordered an
MRI. Tr. at 923. After reviewing the MRI, Dr. Dirksmeier
diagnosed Douglas with “symptomatic degenerative disc
disease and secondary radiculitis and trochanteric
bursitis.” Tr. at 920. Dr. Dirksmeier did not
“recommend medicinal management or interventional pain