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Hersey v. Colvin

United States District Court, D. New Hampshire

November 2, 2016

Nancy Hersey
v.
Carolyn Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 203

          ORDER ON APPEAL

         Nancy Ann Hersey has appealed the Social Security Administration's (“SSA”) denial of her application for a period of disability and disability insurance benefits. An administrative law judge at the SSA (“ALJ”) ruled that, despite several severe impairments, including degenerative disc disease, migraines, obesity, and a tobacco use disorder, Hersey retains the residual functional capacity (“RFC”) to perform her past relevant work as a sales agent, and thus is not disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The Appeals Council later denied Hersey's request for review, see Id. § 404.967, with the result that the ALJ's decision became the final decision on Hersey's application, see Id. § 404.981. Hersey then appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

         Hersey has moved to reverse the decision, see L.R. 9.1(b), contending that the ALJ erred by: (1) incorrectly assessing the credibility of Hersey's subjective complaints, (2) completely discounting the opinion of Hersey's treating nurse practitioner as to Hersey's RFC, and (3) failing to support her RFC finding with substantial evidence in the record. The Acting Commissioner of the SSA has cross-moved for an order affirming the ALJ's decision. See L.R. 9.1(e). After careful consideration, the court grants the Acting Commissioner's motion to affirm (and denies Hersey's motion to reverse) the ALJ's decision.

         I. Applicable legal standard

         The court limits its review of a final decision of the SSA “to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court will uphold the ALJ's decision if it is supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). Though the evidence in the record may support multiple conclusions, the court will still uphold the ALJ's findings “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).

         II. Background[1]

         The ALJ invoked the requisite five-step process in assessing Hersey's request for disability and disability insurance benefits. See 20 C.F.R. § 416.920. First, she concluded that Hersey had not engaged in substantial gainful activity during the period after the alleged onset of her disability on August 31, 2012, and that Hersey will remain insured through December 1, 2016. After analyzing the severity of Hersey's impairments, the ALJ concluded that Hersey suffered from four severe impairments: degenerative disc disease, migraines, obesity, and a tobacco use disorder.[1]

         At the third step, the ALJ found that Hersey's severe musculoskeletal impairment did not meet or “medically equal” the severity of one of the impairments listed in the Social Security regulations, even paired with the potential effects of obesity. See 20 C.F.R. §§ 416.920(d), 416.925, and 416.926. After reviewing the medical evidence of record, Hersey's own statements, the examination report of an impartial medical consultant, the opinion of Hersey's treating registered nurse, and the findings of a physician employed by the State Disability Determination Services to review Hersey's medical records, the ALJ concluded that Hersey retained the RFC to perform light work, albeit with several physical limitations.[2] Finding that, even limited in this manner, Hersey was able to perform her past, relevant work as a sales agent, see 20 C.F.R. § 404.1565, the ALJ concluded her analysis and found that Hersey was not disabled within the meaning of the Social Security Act.

         III. Analysis

         Hersey challenges three aspects of the ALJ's analysis. First, she contends that the ALJ failed to follow the applicable law when she assessed the credibility of Hersey's subjective complaints. Second, she argues that the ALJ erred by discounting the opinion of Hersey's treating nurse practitioner as to Hersey's RFC. Finally, Hersey argues that, in light of these two errors, the ALJ's RFC determination was not supported by substantial evidence. The court addresses each argument in turn and concludes that the ALJ did not err in any of these analyses.

         A. Credibility determination

         Hersey first argues that the ALJ erred in finding her subjective complaints less than credible. The ALJ is responsible for “evaluat[ing] the credibility of a claimant's testimony about [his] symptoms and their limiting effect in light of all the other evidence of record, rather than to simply accept the testimony as true.” Scanlon v. Astrue, 2013 DNH 088, 15 n.4. This court generally defers to that determination when the ALJ supports it with specific evidence in the case record. Simmons v. Astrue, 736 F.Supp.2d 391, 401 (D.N.H. 2010) (citing Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)). Though the record evidence may allow for more than one conclusion, the ALJ's credibility determination will be upheld so long as “a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the ALJ's] conclusion.” Irlanda Ortiz, 955 F.2d at 769 (quotation marks omitted).

         As Hersey points out, the ALJ evaluates subjective complaints according to SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (S.S.A. 1996), which

outlines a specific staged inquiry that consists of the following questions, in the following order: (1) does the claimant have an underlying impairment that could produce the symptoms he or she claims?; (2) if so, are the claimant's statements about his or her symptoms substantiated by objective medical evidence?; and (3) if not, are the claimant's statements about those symptoms credible?

Comeau v. Colvin, 2013 DNH 145, 21 (internal quotations omitted); see also 20 C.F.R. § 404.1529. Adhering to that process, the ALJ concluded that Hersey's impairments satisfied the first criterion, in that her “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” that is, back pain and headaches.[3] At the second and third steps, however, she concluded that Hersey's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .”[4]

         The ALJ grounded this conclusion with citations to specific evidence in Hersey's medical record that undermined -- or even countered -- her allegations as to the severity, intensity, and limiting effect of her back pain and headaches. Hersey testified that her back pain, resulting from a motor vehicle accident in 2012, prevented her from getting out of bed, bending, or sitting, when particularly severe. As the ALJ observed, however, the motor vehicle accident occurred in January 2012, whereas Hersey claims that she became disabled some eight months later, in August 2012.[5] The ALJ also cited the absence of diagnostic evidence of a severe deformity and the fact that Hersey's physical examination was within normal limits and that both x-ray and MRI examination of Hersey's spine “revealed only mild degenerative changes.”[6] She also noted that Hersey was “consistently noted to be in no acute distress when presenting for treatment” and had “no physical deficits upon physical examination, ” which further undermined Hersey's credibility.[7] The ALJ similarly found Hersey's reports of the severity of her headaches less than ...


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