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Barup v. US Social Security Administration

United States District Court, D. New Hampshire

March 31, 2017

Angela Susan Barup
v.
US Social Security Administration, Acting Commissioner, Nancy A. Berryhill Opinion No. 2017 DNH 063

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         Angela Susan Barup is a forty-five-year-old woman who previously worked as a nurse's aide and home health aide, among other positions. Barup challenges the Social Security Administration's denial of her claim for disability insurance benefits (“DIB”).

         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.

         II. STANDARD OF REVIEW

         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

         Barup applied for DIB in November 2011, alleging an onset date of April 12, 2011, which she later amended to April 15, 2011. The ALJ initially denied her application in June 2013, but the Appeals Council vacated the ALJ's decision and remanded the case. On remand, the ALJ held a second hearing in June 2015, at which Barup, represented by counsel, and a vocational expert testified. In a written decision dated June 25, 2015, the ALJ again denied Barup's application for DIB.

         The ALJ applied the five-step sequential analysis outlined in 20 C.F.R. § 404.1520(a) to Barup's claim. At step one, the ALJ determined that Barup had not engaged in substantial gainful activity from the alleged onset date through the date of the decision. The ALJ then found a number of severe impairments at step two: left pronator syndrome, left carpal tunnel syndrome, acromioclavicular (AC) joint disease, biceps tendon disease, degenerative disc disease, and obesity. He also considered a number of other impairments, but found them non-severe: right shoulder and wrist pain, headaches, fibromyalgia, and depression. In his step three analysis, the ALJ concluded that none of Barup's impairments met or medically equaled a listed impairment. After formulating Barup's residual functional capacity (“RFC”), the ALJ proceeded to step four and determined that Barup could not perform any of her past relevant work. At step five, the ALJ reached the conclusion that Barup was not disabled because she could still perform a significant number of jobs in the national economy.

         The Appeals Council subsequently declined to review the ALJ's second decision in December 2015. The ALJ's decision now constitutes the Acting Commissioner's final decision, meaning the matter is ripe for judicial review.

         On appeal, Barup advances two main arguments for remand: (1) the ALJ erred in his treatment of opinion evidence when crafting her RFC, and (2) the ALJ failed to account for Barup's non-severe impairments after step two. I address each argument in turn, ultimately finding both unpersuasive.

         A. Treatment of Opinion Evidence

         Barup argues that the RFC found by the ALJ lacks support because the ALJ erred in his treatment of the opinion evidence in the record. A claimant's RFC is “the most [the claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). On appeal, I determine whether the assigned RFC is free of legal error and supported by substantial evidence. See Nguyen, 172 F.3d at 35. Here, the ALJ found that Barup could engage in “light work”[1] subject to a number of limitations:

she could stand or walk for two hours and sit for six hours in an eight-hour day; she must avoid all ladders, ropes, and scaffolds, but can occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; she can occasionally reach overhead with the left upper extremity and can frequently but not constantly perform fine and gross manipulation with the non-dominant left hand; she should avoid all heights or hazards and concentrated exposure to extreme heat or cold temperatures and vibrations.

Tr. at 25.

         The ALJ ultimately concluded that although “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . the claimant's statements concerning the intensity, persistence and limiting effect of these symptoms are not entirely credible.” Tr. at 26. The ALJ reached this conclusion based on an extensive discussion of the objective evidence in the record, followed by an examination of the opinion evidence.

         Based on his evaluation of the objective evidence in the record, the ALJ determined that Barup's severe impairments lacked sufficient “treatment history, objective medical evidence, and clinical findings to support a finding of disability.” Tr. at 26. The ALJ devoted significant space to a summary of Barup's treatment history for her severe impairments. See Tr. at 26. After complaining of back pain, Barup had an MRI of the lumbar spine in January 2010, showing disc bulges and mild degeneration. See Tr. at 26. Treatment provided Barup some relief, but she complained again in March 2011 of radiating back pain. Tr. at 26. On examination, Barup described tenderness and pain during some movements, but also showed strength in the extremities and other signs of mild impairment. See Tr. at 26-27.

         In April 2011, Barup injured her left shoulder in a work-related incident. She underwent an EMG test in May 2011 after describing pain in her upper left extremity and was diagnosed with mild to moderate left pronator syndrome. Tr. at 27. She continued to complain of pain in the lower back and upper left extremity through 2011, receiving treatment at both locations. See Tr. at 27.

         Barup's reported lower back and upper extremity pain continued into 2012. A February 2012 MRI of her left shoulder showed an “extensive partial tear of the supraspinatus tendon, ” “moderate to marked arthrosis of the left AC join with inferior osteophyte formation, ” and “thickening of the middle glenohumeral ligament.” Tr. at 27. Following the MRI and unsuccessful physical therapy, Barup had left shoulder surgery in April 2012. As of December 2012, however, she continued to have pain and numbness in her left arm and exhibited tenderness and decreased range of motion in the left shoulder. Tr. at 27. Further, a September 2012 MRI of the cervical spine showed degeneration and encroachment, but no spinal stenosis or significant foraminal narrowing. Tr. at 27.

         In January 2013, Barup treated with Dr. Philip Savia. See Tr. at 28. After another MRI of the left shoulder in February - which suggested tendinopathy, a partial tear, or complications from prior surgery - Barup continued to exhibit pain in the upper left extremity and decreased range of motion during two March 2013 examinations. Tr. at 28.

         At a March 2013 treatment with Dr. Praveen Suchdev, Barup received an injection in her left shoulder. At a follow-up May 2013 treatment, Barup “reported a 70 percent improvement in the left shoulder following the procedure.” See Tr. at 28. Dr. Suchdev diagnosed Barup with cervical radiculitis, myofascial pain syndrome, AC joint dysfunction, and shoulder arthralgia. Tr. at 28.

         Barup also treated with Dr. Jon Warner in May 2013. On examination, Barup showed left shoulder tenderness, but also strength and supportably mild limitation in range of motion. See Tr. at 28. X-rays obtained during the visit “showed some mild AC joint degenerative changes as well as mild glenohumeral joint degenerative changes.” Tr. at 28. At a June 2013 follow-up, Dr. Warner noted that his examination supported diagnoses of biceps tendon disease, impingement, and AC joint disease. Tr. at 28. He did not recommend further AC injections or note any functional limitations, though he did suggest additional surgery if Barup's pain persisted. Tr. at 28.

         After discussing Barup's treatment history, the ALJ next outlined the limitations that Barup and her husband had testified to at the first hearing. Barup alleged a need to change positions to avoid back pain, occasional use of a walker, and dizziness and inability to concentrate caused by her medications. Tr. at 29. She also noted difficulty dressing caused by her left hand impairment. Tr. at 29. Barup's husband, Christopher Blackler, reiterated some of Barup's limitations, including her difficulties dressing and walking. Tr. at 29. He added that she had trouble tying her shoes, had issues with her memory, and suffered from headaches. Tr. at 29.

         The ALJ reasoned that the record as a whole failed to support Barup's alleged limitations, because “the claimant's symptoms may not be accurately reported, may not exist at the level of severity assumed . . . and may have other mitigating factors against their negative impact on claimant's [functional] ability.” Tr. at 29. The ALJ pointed to specific evidence in the record to support his conclusion, including an October 2011 examination for back pain during which Barup “was able to stand and ambulate without difficulty, and her gait was normal”; the January 2013 opinion of Dr. Savia that her shoulder injury typically would not cause the paresthesia complained of; and the strength and range of motion in the shoulder demonstrated at Dr. Warner's May 2013 examination. Tr. 29-30. The ALJ added that although Barup used a walker at the first hearing in June 2013, she did not use one at a January 2013 occupational evaluation. Tr. at 30.

         The ALJ closed his discussion of the objective evidence by explaining - with a number of citations to the record - that Barup's clinical presentation had been mild since the initial denial of benefits and the record did not suggest increased functional limitations arising in the interim. See Tr. at 30- 31.

         Having analyzed the objective evidence, the ALJ proceeded to weigh the opinion evidence. The ALJ placed great weight on the January 2012 opinion of state reviewing physician Hugh Fairley, M.D., because Dr. Fairley's opinion was consistent with the objective evidence in the record. See Tr. at 32. In pertinent part, Dr. Fairley opined that Barup could work at a sedentary exertional level, but only engage in limited pushing and pulling with the left upper extremity and occasional overhead reaching with the left upper extremity. See Tr. at 114-15. The ALJ rejected Dr. Fairley's sedentary limitation, citing more recent evidence in the record and a January 2013 opinion by occupational therapist Ryan Gatchell. Tr. at 32.

         The ALJ next placed little weight on the January 2013 opinion of examining physician Karen Huyck, M.D. Tr. at 32. Dr. Huyck indicated that functional capacity testing was to be arranged, but opined that Barup could not return to work. Tr. at 857. The ALJ explained that he gave the opinion little weight because it was conclusory, ...


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