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Douglas v. U.S. Social Security Administration

United States District Court, D. New Hampshire

September 30, 2016

Kathrine Douglas
US Social Security Administration, Acting Commissioner, Carolyn W. Colvin Opinion No. 2016 DNH 176


          Paul Barbadoro United States District Judge.

         Kathrine 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.

         I. BACKGROUND

         In 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.


         Pursuant 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)).

         If the 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.

         III. ANALYSIS

         Douglas 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.

         An 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.

         The ALJ 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.

         In July 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.

         Here, 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.

         A. Residual Functional Capacity Arguments

         Douglas 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.

         In this 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.”[1] 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.

         The ALJ 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.

         1. Reliance on Dr. Jaffe's Opinion

         Douglas 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.

         Douglas 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.

         a. Materiality

         Douglas's 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.

         HALLEX 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. Id.

         The ALJ 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 year.[2]

         b. Impairments arising after Dr. Jaffe's opinion

         Douglas 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.

         In 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 ...

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