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Lavoie v. Berryhill

United States District Court, D. New Hampshire

February 16, 2018

Jennifer Lavoie
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          MEMORANDUM AND ORDER

          PAUL BARBADORO, UNITED STATES DISTRICT JUDGE.

         Jennifer Lavoie challenges the denial of her claim for social security disability insurance (SSDI) benefits and supplemental security income (SSI) under Title II of the Social Security Act, 42 U.S.C. § 423. She argues that the administrative law judge (ALJ) erred by not finding that she had severe mental impairments at step two, by determining that her residual functional capacity (RFC) was greater than the evidence showed, and by finding that she could still perform some work at step five. The Acting Commissioner moves for an order affirming the decision. For the following reasons, I affirm.

         I. BACKGROUND

         A. Facts

         In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 21. Because that joint statement is part of the court's record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below.

         Lavoie was a 37 year-old woman at the time of her alleged onset date. Id. at 2. She had worked as “an automobile mechanic, heavy equipment operator, truck driver, volunteer firefighter, environmental driller, office helper, and hardware store clerk, ” prior to her application for benefits. Id.

         Lavoie's first documented health problem was back pain, which she first reported in April, 2009. Id. In April, 2011, Lavoie underwent a magnetic resonance imaging (MRI) procedure, which showed abnormalities in her spinal column, including a bulging disk. Id. at 3. Lavoie complained of back and leg pain to multiple doctors from 2009 to 2011. Id. Despite her significant back, leg, and ankle pain, Lavoie could walk normally, move from the seated to standing position, perform a single leg squat, and touch her toes. Id. at 4. Lavoie is also morbidly obese. Administrative Transcript (“Tr.”) 493-494.

         Lavoie received treatment for her back pain on various occasions. Doc. No. 21 at 5. She received steroid injections in August and September 2011, but these did not relieve her pain. Id. at 5. She was also prescribed various pain medications, including Vicodin. Id. at 7. In 2013, Lavoie underwent back surgery to fuse two of her vertebrae. Id. at 29. About six months after surgery, during a follow-up visit, she stated that her back pain was a zero out of 100. Id. at 30. She later complained of continued back pain even after surgery. Id. at 30-31. She has continued to complain of back pain through 2016. Id. at 36.

         Lavoie also claimed to have been anxious and depressed, at least partially due to her physical pain. Id. at 4. She was evaluated by psychologist Edouard Carignan, to whom she complained of “depression, irritability, and stress.” Carrigan nevertheless noted that Lavoie was not suicidal, had average intelligence, and did not have any deficit in attention or concentration. Id. at 9. Carignan opined that she had an “adjustment disorder with depressed mood.” Id. at 10. Doctor Stephen Moran also evaluated Lavoie, and diagnosed her with major depressive disorder. Id. at 16. In June, 2012, Lavoie was hospitalized with suicidal thoughts, but had not attempted suicide. Id. at 10. Lavoie also reports that she has post-traumatic stress disorder (PTSD), brought on when, as a volunteer firefighter, she responded to a car crash and discovered that the deceased victim was her best friend. Id. at 14.

         B. Procedural history

         Lavoie filed claims for both SSDI and SSI on March 6, 2012, alleging that she has been disabled since August 22, 2009. Tr. 139, 141. Later, she amended her alleged disability date to October 29, 2011. Doc. No. 21 at 1. Her claims progressed to a hearing before the ALJ, who denied them in a written decision issued on June 6, 2013. Tr. 23. Lavoie appealed the denial of her claims to the district court. Lavoie v. Colvin (“Lavoie I”), 2015 DNH 236.

         I reviewed her claims and reversed and remanded because the ALJ ignored the opinion of Dr. Francis Milligan, a treating source, without “specifically address[ing his] various conclusions, cit[ing] contradictory medical opinions or evidence, or otherwise explain[ing] why [his] findings were unsupported by the record. Lavoie I, 2015 DNH 236, *4; see Jenness v. Colvin, 2015 DNH 167, *7.

         The same ALJ who evaluated Lavoie's claims in 2013 conducted another hearing on August 30, 2016. Tr. 483. The ALJ denied Lavoie's claims in a written decision issued on November 28, 2016. Tr. 499. In the decision, the ALJ applied the five- step analysis required by 20 C.F.R. § 404.1520 (for SSDI claims) and 20 C.F.R. § 416.920 (for SSI claims). At step one, the ALJ determined that Lavoie had not engaged in substantial gainful activity since her alleged onset date. Tr. 486. At step two, the ALJ determined that Lavoie had the following severe impairments: “degenerative disc disease (lumbar spine, status post L5-S1 fusion) and obesity.” Tr. 486. At step three, the ALJ determined that Lavoie did not have any of the impairments listed in 20 C.F.R., Subpart P, Appendix 1, which would render her disabled per se. Tr. 489. At step four, the ALJ determined that Lavoie's RFC allowed her to do “light work as defined in [§] 404.1567(b) and [§] 416.967(b).” Tr. 490. The ALJ further limited her RFC by specifying that she could “occasionally crouch, stoop, and climb ladders, ropes, and scaffolds; frequently balance, kneel, climb ramps and stairs; but must avoid all crawling.” Tr. 490.

         The ALJ determined that, in light of this RFC, Lavoie could not return to any past relevant work. Tr. 497. At step five, after considering the opinion of a vocational expert, the ALJ determined that Lavoie could work in a number of other jobs that existed in the national economy, including, “assembler of plastic hospital products, ” “deli cutter/slicer, ” and “toll collector.” Tr. 498. The ALJ found that Lavoie was not disabled and denied her claims for both SSDI and SSI. Tr. 499.

         Lavoie did not seek review of the ALJ's decision before the Appeals Council, and the Appeals Council did not review the decision on its own. Doc. No. 21 at 2. Instead, Lavoie filed a complaint for judicial review under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) on February 8, 2017. Doc. No. 1.

         II. STANDARD OF REVIEW

         I am authorized under 42 U.S.C. § 405(g) to review the pleadings submitted by the parties and the administrative record and enter a judgment affirming, modifying, or reversing the “final decision” of the Commissioner. That review is limited, however, “to determining whether the [ALJ] 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 ALJ's findings of fact, as 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 ALJ's factual findings are supported by substantial evidence, they are conclusive, even where the record “arguably could support a different conclusion.” Id. at 770. If, however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or judg[ed] matters entrusted to experts, ” her findings are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). The ALJ determines issues of credibility and draws inferences ...


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