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Law v. Berryhill

United States District Court, D. New Hampshire

October 29, 2018

Nanceann Marie Law
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Darlene M. Daniele, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge.

         Pursuant to 42 U.S.C. § 405(g), Nanceann Law moves to reverse the Acting Commissioner's decision to deny her application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter should be remanded to the Acting Commissioner of the Social Security Administration (“SSA”) for further proceedings.

         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). However, the court “must uphold a denial of social security disability 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)).

         Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 14, is part of the court's record and will be summarized here, not repeated in full.

         Law was born on May 3, 1960. Thus, the SSA considers her to have turned 55 on May 2, 2015. See Administrative Transcript (hereinafter “Tr.”) 6. Law last worked in October of 2012, when her one-year contract as a strategic-planning consultant was not renewed. In the Disability Report she filed with the SSA, she reported that her contract was not renewed as a result of performance issues, which she described as resulting from her being “in a fog most of the time.” Tr. 168. Law has been diagnosed with pachymeningitis, [1] fibromyalgia, [2] anxiety disorder not otherwise specified, irritable bowel syndrome, memory loss/disturbance, asthma, and a cognitive impairment.

         Law applied for DIB in April of 2014. In her application, she claimed that she became disabled on January 30, 2013, as a result of: Lyme disease (post treatment), fibromyalgia, chronic pain and fatigue, chronic cough/asthma, COPD/shortness of breath, [3] pachymeningitis, bilateral fluctuating hearing loss, sleep apnea, hystadelia, [4] and severe allergies to various environmental conditions, foods, and dyes. The record includes one opinion on Law's physical residual functional capacity (“RFC”), [5] which was prepared in August of 2014 by Dr. Hugh Fairley, a non-examining state-agency consultant who reviewed Law's medical records. Dr. Fairley, in turn, found that Law had the RFC to perform light-duty work, with some postural and environmental limitations.

         The SSA denied Law's application. Thereafter, she received a hearing before an Administrative Law Judge (“ALJ”). About a week before Law's hearing, the SAA received 251 pages of Law's medical records, covering a period from 2007 through 2015. See Tr. 527-777. There is no suggestion in the record that Dr. Fairley had reviewed any of those records when he assessed Law's RFC in August of 2014.

         After Law's hearing, the ALJ issued an unfavorable decision in which he found that Law: (1) had three severe physical impairments (asthma, fibromyalgia, and obesity) but had no severe mental impairments; (2) did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in the applicable SSA regulations; (3) had the residual functional capacity to perform her past work as a buyer-planner; and (4) also had the RFC to perform the jobs of office worker, information clerk, and telephone clerk/ordering clerk.

         In support of his RFC assessment, the ALJ indicated that he gave great weight to Dr. Fairley's August 2014 opinion on Law's physical RFC.[6] However, while the ALJ made nearly a dozen references to the medical evidence that was submitted to the SSA just before Law's hearing, see Tr. 78, 79, 82, 83, he did not acknowledge that Dr. Fairley had not reviewed that evidence, nor did he address the question of whether any of that evidence was material to assessing Law's limitations or materially changed the record on which Dr. Fairley had based his opinion.

         In any event, based on the findings described above, the ALJ determined that Law had not been under a disability from January 30, 2013, through April 22, 2016, which was the date of the ALJ's decision.

         Law appealed the ALJ's decision. The SSA's Appeals Council (“AC”) adopted some parts of it and disagreed with others. Specifically, the AC disagreed with the ALJ's finding that Law had no severe mental impairments, and found that she had two: anxiety and depression. Even so, the AC adopted the ALJ's finding that Law did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. However, the AC revised Law's RFC by adding a limitation based upon its finding that Law suffered from anxiety and depression.[7] In light of its revision of RFC, the AC determined that Law could not perform her previous work but could perform the jobs of office worker, information clerk, and telephone clerk/ordering clerk. Unlike the ALJ, the AC said nothing about the amount of weight it gave Dr. Fairley's opinion but, like the ALJ, the AC did not address the question of whether any of the evidence that was submitted to the SSA just before Law's hearing was ...


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