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Hunt v. Colvin

United States District Court, D. New Hampshire

December 5, 2016

Carolyn Lee Hunt
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 217

          Ruth Dorothea Heintz, Esq.

          Robert J. Rabuck, Esq.

          ORDER

          Landya McCafferty United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), Carolyn Hunt moves to reverse the Acting Commissioner's decision to deny her applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings consistent with this order.

         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) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court “must uphold a denial of social security . . . 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. 13, is part of the court's record and will be summarized here, rather than repeated in full.

         Hunt filed applications for DIB and SSI on January 3, 2013, claiming to have become disabled on December 22, 2012. In her applications, she identified the following medical conditions as limiting her ability to work: fibromyalgia, fatigue, spinal issues, arthritis, and carpel tunnel syndrome in both hands.

         Hunt has been diagnosed with a variety of physical and mental conditions including: adjustment disorder, depression, posttraumatic stress disorder (“PTSD”), brain injury, narcolepsy, degenerative disk and degenerative joint disease of the cervical spine, cervical spondylosis with myelopathy, carpal tunnel syndrome of both hands, polyarthralgia, [1] paresthesia, [2] tremor, generalized muscle weakness, myopathy not otherwise specified, [3] persistent hypersomnia, snoring, post concussive syndrome, obstructive sleep apnea, insomnia, chronic musculoskeletal pain, and fibromyalgia.

         “Fibromyalgia is a disorder of unknown cause characterized by chronic widespread aching and stiffness.” Stedman's, supra note 1, at 725. In addition, fibromyalgia is “[u]sually associated [with] fatigue, a sense of weakness or inability to perform certain movements, paresthesia, difficulty sleeping, and headaches.” Id. Finally:

The American College of Rheumatology has established diagnostic criteria that include pain on both sides of the body, both above and below the waist, as well as in an axial distribution (cervical, thoracic, lumbar spine, or anterior chest). Additionally, point tenderness must be found in at least 11 of 18 specified sites.

Id.

         In February 2013, Hunt's primary care provider, Dr. David Nelson, referred Hunt to Dr. Julia Bolding, a rheumatologist, to confirm his diagnosis of fibromyalgia. See Administrative Transcript (hereinafter “Tr.”) 419. Under the heading “Assessments, ” Dr. Bolding wrote:

1. Fibromyalgia - 7.29.1 (Primary), > 11 of 18 [fibromyalgia] tender points positive, central pain amplification seems to be the primary issue for her. She states she wants diagnosis confirmed for Disability. As I understand it, her disability is felt to be related to cognitive impairment from a closed head injury and fibromyalgia. I do not know what percentage each diagnosis is felt to be contributing to her disability, but I do not consider fibromyalgia an appropriate reason for disability. Data has shown that patients with fibromyalgia do better if they remain in the workforce.

Tr. 421.

         With respect to Hunt's physical residual functional capacity (“RFC”), [4] the record includes three opinions: (1) an RFC assessment by Dr. Jonathan Jaffe, a state agency medical consultant who reviewed Hunt's medical records, but did not examine or treat her; (2) a Functional Capacity Evaluation (“FCE”) Summary prepared by Catherine Colby (a physical therapist) and Hilary Bradshaw (an occupational therapist); and (3) a Fibromyalgia Medical Source Statement completed by Dr. Nelson. The court describes each opinion in turn.

         In his RFC assessment, Dr. Jaffe opined that Hunt could: (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk (with normal breaks) for about six hours in an eight-hour workday; (3) sit (with normal breaks) for about six hours in an eight-hour workday; and (4) push and/or pull the same amounts she could lift and/or carry. With regard to postural limitations, Dr. Jaffe opined that Hunt could frequently balance and could occasionally climb ramps, stairs, ladders, ropes, and scaffolds; stoop; kneel; crouch; and crawl. He identified no manipulative, visual, communicative, or environmental limitations.

         In their FCE Summary, Colby and Bradshaw opined that Hunt could lift: (1) 20 pounds infrequently and 10 pounds frequently, from floor to knuckle; and (2) 15 pounds infrequently and 10 pounds frequently from knuckle to shoulder height, and from shoulder height to overhead. They also opined that Hunt had no problems with sitting, standing, walking, or climbing stairs.

         Finally, in his Fibromyalgia Medical Source Statement, Dr. Nelson stated that Hunt's fibromyalgia had lasted or could be expected to last at least twelve months, and gave the following prognosis: “Poor - doubt she will recover/improve.” Tr. 617. Regarding Hunt's functional limitations in a work setting, Dr. Nelson opined that she: (1) did not “have the stamina and endurance to work an easy job 8 hours per day 5 days per week (with normal breaks every two hours), ” id.; (2) would need to take unscheduled breaks at least hourly due to muscle weakness, chronic fatigue, pain, paresthesia, and numbness; (3) could not tolerate prolonged sitting; (4) was likely to be off task at least 25 percent of a typical workday; (5) was likely to experience good days and bad days; and (6) was likely to be absent from work more than four days per month due to her fibromyalgia or treatment for it.

         With respect to Hunt's mental RFC, the record includes four opinions: (1) a Mental Health Evaluation report prepared by Dr. Trina Jackson, after she performed a consultative examination; (2) a mental RFC assessment by Dr. Craig Stenslie, a state agency psychological consultant who reviewed Hunt's medical records, but did not examine or treat her; (3) a Medical Source Statement of Ability to Do Work-Related Activities (Mental) completed by Dr. Nelson; and (4) a Mental Impairment Questionnaire completed by Dr. Erinn Fellner, who had seen Hunt in May 2014, on a referral from Dr. Nelson. Again, the court describes each opinion in turn.

         After performing a consultative examination, Dr. Jackson diagnosed Hunt with PTSD and major depressive disorder. In her report, she described Hunt's current level of functioning in five areas, two of which are relevant to the issues before the court:

Understanding and Remembering Instructions: . . . Ms. Hunt's memory appears to be intact overall, though she may notice specific declines. She reported that her cognitions become fuzzy in the afternoon, which is normal given her history of brain injury and TBIs.[5] Based on the available evidence and in my clinical opinion, she is able to function appropriately, independently, effectively, and consistently in the morning, though she is unable to do so later in the afternoon.
Concentration and Task Completion: . . . Ms. Hunt's concentration and attention appeared intact, but again are likely negatively impacted by the early afternoon. Based on the available evidence and in my clinical opinion, she is able to function appropriately, independently, effectively, and consistently in this domain, though she is unable to do so later in the afternoon.

Tr. 317 (emphasis in the original).

         In his mental RFC assessment, Dr. Stenslie opined that Hunt had no limitations on her ability to understand and remember and had no social interaction limitations. With regard to sustained concentration and persistence, Dr. Stenslie opined that Hunt was not significantly limited in five of eight listed abilities, but was moderately limited in her abilities to: (1) carry out detailed instructions; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and (3) complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. With regard to adaptation, Dr. Stenslie opined that Hunt was not significantly limited in three of four listed abilities, but was moderately limited in her ability to respond appropriately to changes in the work setting.

         In his Medical Source Statement (Mental), Dr. Nelson opined that Hunt had mild limitations in five of ten listed abilities (understanding and remembering simple instructions, carrying out simple instructions, interacting appropriately with the public, interacting appropriately with supervisors, and interacting appropriately with co-workers), moderate limitations in two abilities (making judgments on simple work-related decisions and responding appropriately to usual work situations and to changes in a routine work setting), and marked limitations in three abilities (understanding and remembering complex instructions, carrying out complex instructions, and making judgments on complex work-related decisions).

         In her Mental Impairment Questionnaire, Dr. Fellner opined that Hunt had mild limitations in three of sixteen mental abilities and aptitudes necessary to do unskilled work, moderate limitations in seven abilities, and marked limitations in six abilities. Specifically, Dr. Fellner opined that claimant had marked limitations in: (1) maintaining attention for two-hour segments; (2) maintaining regular attendance and being punctual within customary, usually strict tolerances; (3) working in coordination with or proximity to others without being unduly distracted; (4) completing a normal workday and workweek without interruptions from psychologically-based symptoms; (5) performing at a consistent pace without an unreasonable number and length of rest periods; and (6) dealing with normal work stress. She supported those opinions with this narrative:

Due to high anxiety symptoms, cognitive fatigue and poor sustained attention patient [is] unable to maintain attention for tasks greater than 30 minutes, unable to tolerate even normal workplace stress, and unable to maintain pace or schedule without disruptions due to psychologic[al] symptoms.

Tr. 623. With respect to functional limitations, Dr. Fellner opined that Hunt had: (1) moderate restrictions on her activities of daily living; (2) marked difficulties in maintaining both social functioning and concentration, persistence or pace; and (3) four or more episodes of decompensation, each of at least two weeks duration, over the previous 12 months. Finally, Dr. Fellner opined that Hunt would miss more than four days of work each month because of her mental impairments or treatment for them.

         After the Social Security Administration (“SSA”) denied Hunt's applications for benefits, she received a hearing before an Administrative Law Judge (“ALJ”). Subsequently, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: depression; anxiety; traumatic brain injury; fibromyalgia; narcolepsy; and bilateral carpal tunnel syndrome (20 CFR 404.1520(c) and 416.920(c)).
. . . .
4. The clamant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), ...

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