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Chambers v. Colvin

United States District Court, D. New Hampshire

October 25, 2016

Margo Chambers
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration No. 2016 DNH 187

          ORDER

          Landya McCafferty United States District Judge

         Pursuant 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.

         I. Standard of Review

         The applicable standard of review in this case provides, in pertinent part:

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)).

         As for 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)).

         II. Background

         The 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.

         In 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' condition:

[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.”[1] Tr. 188. Dr. Grobman also wrote:

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 problem.

         After 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.”[2] 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.

         In June 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.
Q Okay.
A They said one good slip, one good fall, I'd be looking at a wheelchair.
Q Okay.
A And I was around inmates so they didn't think it would be a very good environment for me.

Tr. 33.

         In July 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.

         In 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.

         In July 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.” Tr. 239.

         The 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.

         In conjunction with the February 2014 office visit, Dr. Paicopolis completed a Physical Residual Functional Capacity (“RFC”) Questionnaire on Chambers.[3] 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.

         With 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.[4] 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.

         The 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”).[5] 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.

         After 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.[6] 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 ...

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