United States District Court, D. New Hampshire
McCafferty United States District Judge
to 42 U.S.C. § 405(g), Margo Chambers moves to reverse
the Acting Commissioner's decision to deny her
application for Social Security disability insurance benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 423. The Acting Commissioner, in turn,
moves for an order affirming her decision. For the reasons
that follow, the decision of the Acting Commissioner, as
announced by the Administrative Law Judge
(“ALJ”), is affirmed.
Standard of Review
applicable standard of review in this case provides, in
The [district] court shall have power 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. The findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .
42 U.S.C. § 405(g). However, the court “must
uphold a denial of social security disability benefits unless
‘the [Acting Commissioner] has committed a legal or
factual error in evaluating a particular claim.'”
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
the statutory requirement that the Acting Commissioner's
findings of fact be supported by substantial evidence,
“[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences
and conclusions drawn from such facts.” Alexandrou
v. Sullivan, 764 F.Supp. 916, 917-18 (S.D.N.Y.
1991) (citing Levine v. Gardner, 360 F.2d 727, 730
(2d Cir. 1966)). In turn, “[s]ubstantial evidence is
‘more than [a] mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Currier v. Sec'y of
HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
But, “[i]t is the responsibility of the [Acting
Commissioner] to determine issues of credibility and to draw
inferences from the record evidence. Indeed, the resolution
of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v.
Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (per
curiam) (citations omitted). Moreover, the court “must
uphold the [Acting Commissioner's] conclusion, even if
the record arguably could justify a different conclusion, so
long as it is supported by substantial evidence.”
Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st
Cir. 1988) (per curiam). Finally, when determining whether a
decision of the Acting Commissioner is supported by
substantial evidence, the court must “review the
evidence in the record as a whole.” Irlanda
Ortiz, 955 F.2d at 769 (quoting Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
parties have submitted a Joint Statement of Material Facts.
That statement, document no. 9, is part of the
court's record and will be summarized here, rather than
repeated in full.
March of 2011, Chambers' primary care provider
(“PCP”) referred her to Dr. John Grobman
“for evaluation of left nondominant shoulder pain and
arm numbness.” Administrative Transcript (hereinafter
“Tr.”) 187. In his first office note after the
referral, Dr. Grobman described the history of Chambers'
[B]ack in October [of 2010], she was just stretching her arm
up overhead. She felt some sort of a pop and then
couldn't lower her arm. . . . It got better, although it
probably took a couple of months to get better. She has had
some minor reinjuries with just normal activities.
She gets complaint of a dull ache in the posterior shoulder,
which goes down to the hand and fingers on the left and feels
that she has lost strength. She is not able to reach up
behind her. Her husband has been having to fasten her bra for
her and reaching back to put on a seat belt and that sort of
thing is painful as well.
Tr. 187. Based on his review of an MRI, Dr. Grobman diagnosed
Chambers with “cervical stenosis and foraminal stenosis
[at] ¶ 5-6 and C6-7.” Tr. 188. Dr. Grobman also
I've acquainted [Chambers] with the fact that she is at
some risk of spinal cord injury should [her] stenosis problem
get worse or should she be subjected to a whiplash-type
injury. . . . I have informed her that given her young age
that I think she probably will require single or two-level
decompression and fusion.
Id. As of July 24, 2014, Chambers had not had
surgery for her cervical spine condition, and the record does
not appear to include any subsequent diagnostic imaging,
which would document the progression, if any, of her stenosis
diagnosing Chambers, Dr. Grobman referred her to Dr. Glen
Lieberman, who diagnosed her as being “neurologically
intact” and as having “what appears to be
symptomatic disc osteophyte complexes at ¶ 5/6, C6/7 in
the subaxial cervical spine.” Tr. 189. He prescribed
Vicodin and referred Chambers to Dr. Jan Slezak for cervical
epidural steroid injections. Chambers had two such injections
in May and July of 2011. In May of 2011, Dr. Lieberman
reported that Chambers had “done well enough that [he]
discharge[d] her” with the proviso that he would
“see her on an as needed basis.” Tr. 190. It does
not appear that Chambers ever saw Dr. Lieberman again.
of 2011, Chambers left her job as an accounting clerk for the
New Hampshire Department of Corrections (“DOC”).
At the hearing that finalized the decision of the Social
Security Administration (“SSA”) to deny her
application for benefits, she described the end of her DOC
job this way:
Q And you quit the job?
A I had to.
A They said one good slip, one good fall, I'd be looking
at a wheelchair.
A And I was around inmates so they didn't think it would
be a very good environment for me.
of 2012, Chambers visited Laconia Cardiology, P.A.,
complaining of “major neck issues, ” Tr. 221, and
seeking to establish care with a PCP. On that visit, she was
seen by Stacy Breau, a nurse practitioner, who gave her an
assessment of neck pain and recommended a follow-up visit in
two months' time. Chambers saw Nurse Breau twice more:
(1) in August of 2012 for a “follow-up of her neck
stenosis, ” Tr. 224; and (2) in February of 2013,
“for a refill on her vicodin, ” Tr., 222. On both
occasions, Nurse Breau gave Chambers a physical examination.
March of 2013, Chambers applied for Social Security
disability insurance benefits. She was last insured for DIB
on December 31, 2012. At her hearing, she offered conflicting
testimony about whether she became unable to work before her
eligibility for DIB expired. When asked whether she could
work eight hours a day, five days a week, in 2012, she
responded: “Back then, yeah. Now? No.” Tr. 46.
Shortly thereafter, however, she testified that in December
of 2012, she needed to lie down for two or three hours,
nearly every day, to relieve her pain, and that her pain
prevented her from concentrating well enough to do her former
work as an accountant.
of 2014, Chambers first saw Dr. Mary-Claire Paicopolis, a
cardiologist associated with Laconia Cardiology. Dr.
Paicopolis diagnosed Chambers with cervical disk disease and
prescribed Vicodin for pain control. In her initial treatment
note, Dr. Paicopolis wrote: “[T]he patient cannot work
at this time.” Tr. 241. Dr. Paicopolis saw Chambers
again in February of 2014, and in her note on that visit, she
wrote: “No way the patient can go back to work.”
notes prepared by Nurse Breau and Dr. Paicopolis show that
Chambers was given several physical examinations, but no
testing related to her cervical disk disease. Her treatment
was limited to prescriptions for Voltaren and Vicodin.
conjunction with the February 2014 office visit, Dr.
Paicopolis completed a Physical Residual Functional Capacity
(“RFC”) Questionnaire on Chambers. In it, she
indicated that she had treated Chambers for one year,
identified a diagnosis of spinal stenosis/degenerative disc
disease, and gave this prognosis: “need[s] spine
surgery.” Tr. 231. When asked to identify the clinical
findings and the objective signs supporting her opinions on
Chambers' RFC, Dr. Paicopolis wrote: “see
orthopedic notes.” Id. It is not clear what
orthopedic notes Dr. Paicopolis was referring to.
regard to exertional limitations, Dr. Paicopolis opined that
Chambers could not walk even one block without rest or severe
pain, could sit for five minutes at a time before needing to
get up, could stand for 15 minutes before needing to sit
down, and could sit and stand/walk for a total of less than
two hours in an eight-hour working day. She also opined that
Chambers needed to walk around for 15 minutes every 15
minutes, needed a job that permitted shifting positions at
will from sitting to standing and/or walking, needed 15
minute breaks every 15 minutes, and could lift and carry less
than 10 pounds occasionally, 10 pounds rarely, and never any
more than that. Dr. Paicopolis identified similarly
restrictive postural and manipulative
limitations. She also opined that Chambers' pain
would frequently interfere with attention and concentration,
that she was incapable of even low stress jobs, and that she
was likely to be absent from work more than four days a month
as a result of her impairment. Finally, Dr. Paicopolis opined
that Chambers' impairment had lasted, or could be
expected to last, at least twelve months, and that the
symptoms and limitations she identified in the RFC
Questionnaire began in 2010.
record includes a Disability Determination Explanation
(“DDE”) form. In lieu of a function-by-function
RFC assessment by a state agency medical consultant, such as
those typically reported on DDE forms, the DDE form in
Chambers' case includes a statement by Cheryl Searles,
who is a single decisionmaker
(“SDM”). According to Searles: “Although
there is some evidence in [Chambers'] file, it is not
sufficient to make a determination for disability for the
period in question.” Tr. 59.
the SSA denied Chambers' application for benefits, she
received a hearing before an ALJ. At the hearing, the ALJ
asked a vocational expert (“VE”) to characterize
Chambers' previous work according to the exertional and
skill levels stated in the Dictionary of Occupational
Titles. He next acknowledged Searles' notation
on the DDE form concerning the lack of evidence in the file,
and stated: “Well, I'm going to work from the
evidence that I have.” Tr. 50. Then the following
exchange took place between the ALJ and the VE:
Q Let's first look at a range of sedentary exertional
work, allowing for an alternation of sitting and standing
every 30 minutes, with occasional postural activities such as
stooping, crouching, crawling, climbing of ramps and stairs,
no climbing of ladders, ropes and scaffolds, frequent
balancing and no crawling. No difficulties with manipulative
limitations. A need to avoid unprotected heights, in close
proximity to dangerous machinery. And for the moment
let's leave it at that. Given that hypothetical, would
the claimant be able to perform any ...