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Jackson v. Berryhill

United States District Court, D. New Hampshire

June 7, 2019

Mary Jackson
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Joseph N. Laplante United States District Judge

         Mary 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.

         I. Scope of Review

         The 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)).

         As for 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).

         In 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).

         II. Background

         Jackson 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.

         Jackson 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.[1] 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 reported:

         The 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.

         Administrative 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.

         Jackson 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, [2] was given trigger-point injections nine times, and was twice given a caudal epidural steroid injection (“caudal ESI”).

         On 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.

         In 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.

         In July 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.[3]

         Three 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 (“RFC”).[4]

         On March 8, 2017, the SSA denied Jackson's application for DIB.

         In 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.

         In 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.

         After 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.

         At 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.

         After 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.

         III. Discussion

         A. The Legal Framework

         To be 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 28, 2018.

         To decide whether a claimant is disabled for the purpose of determining eligibility for DIB, an ALJ is required to employ a five-step sequential ...

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