United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO, UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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 ...