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Baron v. Berryhill

United States District Court, D. New Hampshire

August 21, 2017

Katherine Ann Baron
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 156



         Pursuant 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.

         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. 12, is part of the court's record and will be summarized here, rather than repeated in full.

         Baron 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 impairments.

         A. Physical Impairment

         On January 10, 2013, Baron began treating with Dr. Robert Niegisch. Before that, she had been prescribed Percocet for back pain, through the NeuroSpine Institute.[1]

         On 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].

         Administrative 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.

         In a 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 high.[2]

         Tr. 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.

         Dr. 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, ”[3] Tr. 247, and reported the following objective findings:

[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.[4]

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, ”[5] 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.

         For 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. 247.

         On December 24, 2013, Baron was given a consultative orthopedic examination by Dr. Peter Loeser.[6] 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.


         On 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”).[7]

         On 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.

         On 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.

         B. Mental Impairments

         On 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. Niegisch.

         On July 6, 2012, Baron was given a consultative psychological examination by Dr. Juliana Read.[8] 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 ...

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