United States District Court, D. New Hampshire
N. LAPLANTE, UNITED STATES DISTRICT JUDGE.
to 42 U.S.C. § 405(g), Katherine Baron 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, 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) (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)).
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. 12, is part of the court's
record and will be summarized here, rather than repeated in
applied for DIB in January of 2013, and applied for SSI in
June of that year. In both applications, she claimed to have
been disabled since January 6, 2012, as a result of chronic
back pain, anxiety, depression, bipolar disorder, and
alcoholism. The court begins by focusing on Baron's
physical impairments and then turns to her mental
January 10, 2013, Baron began treating with Dr. Robert
Niegisch. Before that, she had been prescribed Percocet for
back pain, through the NeuroSpine Institute.
January 25, 2013, Baron saw Dr. Niegisch with a chief
complaint of low back pain. In his chart document, under the
heading “Assessment, ” Dr. Niegisch wrote:
Chronic low back pain. . . . In the interim for the short
term, given what appears to be a musculoskeletal issue very
likely related to a congenital issue, but without to my
knowledge any known significant spinal pathology, we will
give her some narcotics to help her sleep at night. . . . We
will try to get copies of her lumbar MRI in preparation for
[an] appointment [scheduled for five days later].
Transcript (hereinafter “Tr.”) 297-98. After
Baron's follow-up appointment, Dr. Niegisch observed that
she had “horrible posture . . . lean[ing] forward and
to the side.” Tr. 293. He assessed her as having
“[c]hronic low back pain, underlying scoliosis and
fusion of L4-L5 per abdominal x-ray radiology studies.”
Id. Dr. Niegisch also stated: “We need an MRI
of her back.” Id.
February 7, 2013, chart document that Dr. Niegisch wrote
after he obtained an MRI of Baron's back, he reported:
She continues to be most comfortable leaning forward in kind
of a hunched forward posturing position. This is just so very
interesting relative to her MRI findings, which were fairly
stable between '06 and '09, with the interesting
finding of her foraminal cyst not likely representing
apparently a source of pain. She does have congenital, at
least partial, effusion of L4-5 and scoliosis which likely
sets her up for trouble, but she interestingly has, on most
recent study, fairly open foraminal exits and as such 1 would
think the rehabilitation potential for her and/or the
amenability to successful injection therapy might be quite
288. After making that report, Dr. Niegisch gave the
following assessment: “Pain management for chronic
congenital back discomfort with scoliosis L4-5 fusion and a
foraminal cyst.” Id.
Niegisch saw Baron approximately 20 more times, at irregular
intervals, between February of 2013 and September of 2014.
About seven of Baron's subsequent visits to Dr. Niegisch
involved complaints about or treatment for her back pain. In
July of 2013, Dr. Niegisch noted that Baron's “last
MRI a number of years ago revealed some semblance of L4-L5,
L5-S1 left-sided nerve root irritation perhaps from a
ganglion, ” Tr. 247, and reported the following
[S]he had some pain in the low back in the paraspinous
muscles and centrally and about the low lumbar spine level.
She flexed and twisted fairly well. Straight leg raising to
45 degree[s] right, only 20 degrees left. I could get her to
45 degrees before pain ensued in her low back. . . . I
examined her hip and there was no difficulty with internal or
external rotation, flexion or extension. Reflexes certainly
depressed at both knees, a little bit more depressed on the
left ankle than the right. Babinski toes withdrawal. Light
touch is intact distally.
Id. Based upon his examination, Dr. Niegisch
assessed Baron with “[u]nusual left leg symptoms with
radicular issues of sciatica and low back discomfort, a
little outside the usual and customary.” Id.
In an October 15, 2013, chart document that resulted from an
office visit to “follow up on anxiety, depression,
recent medication overdose, seizure, hospitalization, [and]
underlying macrocytosis, ” Tr. 359, Dr. Niegisch wrote:
“We are going to set her up for an MRI of her low back,
with a followup consultation up at Dartmouth, ”
id. The record includes no evidence that either the
MRI or the followup consultation ever took place.
Baron's back pain, Dr. Niegisch prescribed medication and
recommended formal pain management. Baron does not appear to
have followed the pain-management recommendation with any
consistency, nor is there any record of her engaging in
physical therapy, as was once recommended, see Tr.
December 24, 2013, Baron was given a consultative orthopedic
examination by Dr. Peter Loeser. He diagnosed her with
“[l]ow back pain of uncertain etiology.” Tr. 383.
With respect to Baron's cervical spine and her thoracic
spine, Dr. Loeser noted multiple negative findings and a
single positive finding: “Mild scattered tenderness on
palpation of the spinous processes at all levels.” Tr.
382. With respect to her lumbar spine, he noted several
negative findings plus these positive findings:
Mild scattered tenderness on palpation of the spinous
processes at all levels with moderate tenderness to palpation
over the left [sacroiliac] joint. Supine straight leg raise
limited about 50 degrees on right and about 50 degrees on
left due to pain in lower back.
Id. As for Baron's gait and station, Dr. Loeser
noted several negative findings, along with a single positive
finding: “Gait remarkable for a mild left leg antalgic
limp due to pain.” Tr. 383. Dr. Loeser then gave the
following assessment of Baron's low back pain:
There are subjective findings on physical examination, and
limited available documentation to support . . . these
symptoms, without a defined underlying etiology for these
symptoms. There are no available imaging studies. The patient
notes a history of having had a breast enlargement in 2006 at
or around the onset of these symptoms, and it should be noted
that the patient's breast[s] are remarkably large for her
rather small frame and could be directly related to these
symptoms. Though the patient states these symptoms are having
a significant impact on overall function, there is
insufficient evidence to support this conclusion.
December 30, 2013, a non-examining state-agency medical
consultant, Dr. Donald Trumbull, reviewed Baron's medical
records. He determined that those records did not establish
any medically determinable physical impairment. Necessarily,
he offered no assessment of the severity of Baron's back
condition, and did not assess her physical residual
functional capacity (“RFC”).
September 18, 2014, approximately 15 months after he had last
addressed complaints from Baron relating to her back
condition, Dr. Niegisch completed a “Physical Residual
Functional Capacity Questionnaire” on Baron. In it, he
indicated a diagnosis of low back pain that, in his opinion
had lasted, or could be expected to last, for at least 12
months. When asked to “[i]dentify . . . clinical
findings and objective signs, ” Tr. 385, Dr. Niegisch
wrote: “Tender [left] paraspinous muscles [and]
scoliosis. See enclosed MRI.” Id. Dr.
Niegisch's reference to tender paraspinous muscles
appears to be based upon an examination he had administered
about 15 months earlier, in July of 2013. See Tr.
247. With regard to Baron's functional capacity, Dr.
Niegisch opined that she could: (1) sit for one hour at a
time before needing to get up; (2) stand for one hour at a
time before needing to sit down or walk around; (3) sit for
less than two hours in an eight-hour work day (with normal
breaks); (4) stand/walk for less than two hours in an
eight-hour work day (with normal breaks). He also opined that
Baron needed to: (1) change position every 60 minutes; (2)
have a job that allows her to shift positions at will; and
(3) take hourly unscheduled breaks during an eight-hour work
day. The questionnaire also included questions about
Baron's capacity for lifting, and about postural and
manipulative limitations, but Dr. Niegisch did not answer
them. Rather, he stated that those abilities “would
have to be tested formally.” Tr. 387.
November 4, 2014, Baron saw Dr. Niegisch for a six-week
follow up for depression, anxiety, and chronic low back pain.
In his note on Baron's visit, Dr. Niegisch gave the
following assessment: “Anxiety, depression, chronic low
back discomfort not really at issue here. This is more social
in origin.” Tr. 407.
October 8, 2013, Baron saw Dr. Niegisch, complaining of
“an exacerbation of depression.” Tr. 363. Dr.
Niegisch gave the following assessment: “Fairly
significant depression. Opiate dependence. Noncompliance with
narcotics contracts. Ongoing issues with alcohol abuse.
Adjustment disorder with depressed mood.” Id.
Dr. Niegisch sent Baron to the emergency room at Concord
Hospital, believing “that she [was] a candidate for
acute psychiatric intervention, if not admission to the
hospital.” Id. At the ER, she received a
mental health evaluation from physician's assistant Ann
Kearns. PA Kearns diagnosed Baron with suicidal ideation,
escalating depression and anxiety, and substance abuse. After
completing the evaluation, PA Kearns referred Baron to
Riverbend Community Mental Health (“Riverbend”),
where she was seen by Roy Dewinkeleer, a social worker. He
diagnosed Baron with depressive disorder, not otherwise
specified, and polysubstance dependence. After determining
that Baron posed a low risk for suicide, Dewinkeleer noted
that she did “not wish to be hospitalized, and [did]
not meet the standards of an [involuntary emergency
admission] at [that] time.” Tr. 318. Dewinkeleer gave
Baron contact information, and a follow-up appointment was
made for her, but there is no evidence in the record that she
kept that appointment or had any other contact with Riverbend
until December of 2014, more than a year later. As best the
court can tell from the record, Baron's mental-health
treatment has been limited to medication prescribed by Dr.
6, 2012, Baron was given a consultative psychological
examination by Dr. Juliana Read. Dr. Read diagnosed Baron
with: “Panic Disorder With Agoraphobia; Major
Depressive Disorder, Moderate, First Episode; Opiate
Abuse/Dependence - In Remission.” Tr. 235. In the
Mental Health Evaluation Report she completed after examining
Baron, Dr. Read gave the following opinions on Baron's
then-current level of functioning:
Activities of Daily Living: . . . Kathie is
capable of attending to her activities of daily living,
outside of interference associated with her physical pain.
She is able to attend to hygiene, care for the home and
personal property, drive and handle finances.
Social Functioning: . . . Kathie, despite
impairments, is capable of interacting appropriately and
communicating effectively with others.
Understanding and Remembering Instructions:
. . . Kathie is capable of understanding and remembering both
simple and complex instructions and detailed procedures,
despite her impairments.
Concentration and Task Completion: . . .
[T]hough Kathie is able to maintain attention, she is not
consistently capable of holding her concentration, due to
high anxiety and depressed mood.
Reaction to Stress, Adaptation to Work or Work-like
Situations: . . . Kathie is capable of making simple
decisions, interacting appropriately with supervisors and
maintaining a schedule, against aside from ...