United States District Court, D. New Hampshire
N. Laplante United States District Judge
Jackson moves to reverse the decision of the Acting
Commissioner of the Social Security Administration
(“SSA”) 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 is
remanded to the Acting Commissioner for further proceedings.
Scope of Review
scope of judicial review of the Acting Commissioner's
decision is as follows:
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)).
the standard of review that applies when an applicant claims
that an SSA adjudicator made a factual error,
[s]ubstantial-evidence review is more deferential than it
might sound to the lay ear: though certainly “more than
a scintilla” of evidence is required to meet the
benchmark, a preponderance of evidence is not. Bath Iron
Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56
(1st Cir. 2003) (internal quotation marks omitted). Rather,
“[a court] must uphold the [Acting Commissioner's]
findings . . . if a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to
support [her] conclusion.” Rodriguez v. Sec'y
of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981) (per curiam). Purdy v. Berryhill, 887
F.3d 7, 13 (1st Cir. 2018).
addition, “‘the drawing of permissible inference
from evidentiary facts [is] the prime responsibility of the
[Acting Commissioner],' and ‘the resolution of
conflicts in the evidence and the determination of the
ultimate question of disability is for [her], not for the
doctors or for the courts.'” Id. (quoting
Rodriguez, 647 F.2d at 222). Thus, 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).
was born in 1969. She has held several positions in the
medical field. In 2012, while working as an emergency-room
technician, she suffered an on-the-job back injury for which
she filed a workers' compensation claim that was settled.
Jackson's last job was as a medical assistant, and she
held that position until October 30, 2015.
has received treatment for her back condition ever since her
injury in 2012. In November of 2016, she saw Dr. Stephen
Holman of the Seacoast Pain Institute of New England
(“SPINE”), who diagnosed her with spondylosis of
the lumbar region without myelopathy or
radiculopathy. He scheduled her for radiofrequency
lesioning of the medial branches. In a progress note
documenting a subsequent visit to SPINE, on March 8, 2017,
physician's assistant (“PA”) Shelly Landry
lower back pain occurs constant[ly], during activities,
during lifting, when bending. . . . Pain [is] made better by
heat, body pillow. Pain [is] made worse by bending, twisting,
physical activities over 30 minutes. Prior treatment caudal
epidural steroid injection helped, Physical
Therapy/[Occupational Therapy], was no help. . . . She is
[status-post radiofrequency] ablation of the [bilateral]
¶ 2-5 medial branch nerves completed 12/21/16 which has
not provided her with any significant relief thus far
however, she has noticed a significant increase in muscle
spasm since the procedure.
Transcript (hereinafter “Tr.”) 1026. PA Landry
described the results of her examination of Jackson's
lumbar spine this way:
The patient is focally tender to palpation where there are
local taut bands of muscles located at the bilateral lumbar
paraspinal muscles at ¶ 5 level, bilateral gluteal
minimus, just lateral to the superior aspect of the
[sacroiliac] joints, and bilateral gluteal maximus, just
lateral to the inferior aspect of the [sacroiliac] joints.
These areas represent local taut bands of muscle which
reproduce a snapping palpation and referred pain pattern upon
stimulation of each trigger point.
Id. at 1026-27.
returned to SPINE approximately 15 more times in 2017 for
treatment of her back pain. Eight times, SPINE providers who
examined Jackson's back reported “local taut bands
of muscles.” Tr. 996; see also Tr. 1000, 1003, 1007,
1010, 1018, 1023, 1025. Twice, those providers referred to
pain caused by muscle spasms. See Tr. 1018, 1022. From March
of 2017 onward, Jackson was given prescriptions for
diclofenac, Amrix, Flexeril, tramadol, tizanidine,
cyclobenzaprine, amitriptyline, gabapentin, and Norco for her
back pain,  was given trigger-point injections nine
times, and was twice given a caudal epidural steroid
injection (“caudal ESI”).
September 13, 2017, a SPINE provider reported that Jackson
had recently canceled a scheduled caudal ESI because her back
pain had responded well to trigger-point injections, see Tr.
1007, but a week later, she re-scheduled the caudal ESI, see
1004. Jackson received that treatment on October 3, see Tr.
1001, but it was only effective for a few days, see Tr. 997.
November of 2017, Jackson had an MRI of her lumbar spine
which showed “mild arthritis at ¶ 3-4 L4-5 and 5
S1 with a significant disc herniation migration of the disc
up and left impacting the traversing S1 nerve root on the
left.” Tr. 997. During the office visit at which Dr.
Holman reviewed Jackson's MRI with her, the two of them
began discussing the possibility of back surgery.
of 2016, Jackson applied for DIB, claiming that she had been
disabled since October 1, 2013, as a result of a fractured
back, a torn disc in her back, severe facet damage in her
spine, post-gastric sleeve complications, migraines,
insomnia, radiculopathy in her toes and lower extremity, and
Factor V Leiden disorder.
days before she filed her application, Jackson had received
an independent orthopedic medical evaluation, in connection
with her workers' compensation claim, from Dr. Jonathan
Sobel. Dr. Sobel's report included an opinion on
Jackson's work capacity. On March 6, 2017, a state-agency
medical consultant, Dr. Phyllis Sandell, reviewed
Jackson's medical records and assessed her physical
residual functional capacity
March 8, 2017, the SSA denied Jackson's application for
April and May of 2017, PA Landry completed three New
Hampshire Workers' Compensation Medical Forms for
Jackson. In each one, she opined that Jackson had no work
capacity. She also offered opinions on Jackson's capacity
to perform several specific work-related activities.
January of 2018, a physician's assistant, Dorothy
McGrath, completed a Physical Impairment Medical Source
Statement on Jackson. She opined that Jackson's pain or
other symptoms would constantly interfere with the
concentration and attention needed to perform simple work
tasks and that Jackson was incapable of even low-stress jobs.
the SSA denied Jackson's application for DIB, she
requested and received a hearing before an Administrative Law
Judge (“ALJ”). Before her hearing, she amended
the date on which she claimed to have become disabled to
October 1, 2015.
Jackson's hearing, in January of 2018, she testified that
her daily activities consisted almost exclusively of sitting
in a recliner with a heating pad and shifting positions in an
attempt to relieve her back pain. In addition to hearing from
Jackson, the ALJ took testimony from a vocational expert
(“VE”). The ALJ asked the VE what jobs could be
performed by a person with the RFC that Dr. Sandell had
ascribed to Jackson, and the VE testified that such a person
could not do Jackson's previous work as a certified
nursing assistant or her work as an emergency-room
technician, but could do Jackson's previous job as a
medical assistant. Then, in response to a question from
Jackson's counsel, the VE testified that all work would
be precluded for a person with the RFC that Dr. Sandell
assigned Jackson if that person “would experience pain
or other symptoms that would interfere with [her] ability to
stay on task greater than a third of an eight-hour work
day.” Tr. 63.
Jackson's hearing, the ALJ issued a decision in which he
determined that Jackson's lumbar degenerative disc
disease and obesity were both medically determinable severe
impairments but also found that none of Jackson's
impairments, either alone in combination, met or medically
equaled the severity of any of the impairments on the
SSA's list of impairments that are per se disabling.
Next, the ALJ determined that Jackson had an RFC consistent
with Dr. Sandell's opinion. In support of his
determination, the ALJ: (1) discounted claimant's
statements about her symptoms; (2) gave partial weight to Dr.
Sobel's opinions; (3) gave substantial weight to Dr.
Sandall's opinions; (4) gave limited weight to PA
McGrath's opinions; and (5) did not evaluate PA
Landry's opinions. Based upon his RFC assessment and the
testimony of the VE, the ALJ found that Jackson was able to
perform her former work as a medical assistant. As a
consequence, he determined that Jackson was not under a
disability from October 1, 2015, through the date of his
decision, February 28, 2018.
awarded disability insurance benefits, a person must:
(1) be insured for DIB; (2) not have reached retirement age;
(3) have filed an application; and (4) be under a disability.
42 U.S.C. § 423(a)(1)(A)-(D). The only question in this
case is whether the ALJ correctly determined that Jackson was
not under a disability from October 1, 2015, through February
decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ
a five-step sequential ...