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Plourde v. Saul

United States District Court, D. New Hampshire

September 30, 2019

Scott Plourde
Andrew Saul, [1] Commissioner, Social Security Administration



         Scott Plourde moves to reverse the decision of the Commissioner of the Social Security Administration (“SSA”) to deny his applications for supplemental security income, or SSI, under Title XVI of the Social Security Act, 42 U.S.C. § 1382. The Commissioner, in turn, moves for an order affirming his decision. For the reasons that follow, I deny Plourde's motion and affirm the decision of the Commissioner.

         I. Scope of Review

         The scope of judicial review of the 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) (setting out standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). However, the court “must uphold a denial of social security disability benefits unless ‘the [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 [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 [Commissioner],' and ‘the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [him], not for the doctors or for the courts.'” Id. (quoting Rodriguez, 647 F.2d at 222). Thus, the court “must uphold the [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

         A. Biography

         Plourde was born in 1975. He has not had a full-time job since 2010, but before that he worked as a motorcycle assembler, automobile sales person, solar-energy installer helper, asphalt distributor, and denture model maker. In 1996, Plourde had a motorcycle accident in which he fractured his C-6 vertebra. He fractured his cervical spine in 2009. And in 2012, he was hit in the head with a baseball bat during a mugging.

         B. Medical History

         In this section I eschew a full history of Plourde's medical treatment but, rather, I focus on the treatment records that are relevant to the issues in this case.

         1. Neck Injury

         In January of 2015, Plourde saw Dr. Timothy Sievers of the Elliot Hospital Interventional Spine Center. Dr. Sievers reported: (1) “a history of traumatic injury to the cervical spine, ” Administrative Transcript (hereinafter “Tr.”) 1683; (2) a chief complaint of “mechanical neck pain, ” id.; and (3) and an impression of cervical spondylosis, [2] see Id. Dr. Sievers treated Plourde with “cervical medial branch blocks at ¶ 4 through C7.” Id. In March, Dr. Sievers reported that the January treatment “did help [Plourde] diagnostically and therapeutically and [that he] had moderate improvement noted on a reevaluation, ” Tr. 1664, but he also reported that Plourde was “having a lot of posterior headaches, ” Id. Dr. Sievers also administered a second set of cervical medial branch blocks. In addition, after examining Plourde, Dr. Sievers noted that his exam was “consistent with occipital neuralgia with tenderness [around the] occipital nerve outlet and pain radiating up and over [Plourde's] head.”[3] Id.

         About a month after Plourde's second set of cervical medial branch blocks, Dr. Sievers reported:

He is seen for followup to evaluate the efficacy of his second set of injections, which was notably helpful . . . . He has much less neck pain at this point and is approximately 80% or greater improved regarding neck pain.
He is still having considerable occipital headaches. At the time of his last visit, he was found to have tender occipital nerve outlets provocative for occipital head pain. He is scheduled today for occipital nerve blocks, bilaterally.

         Tr. 1650.

         Dr. Sievers saw Plourde again in June of 2015, and he diagnosed Plourde with cervicogenic headaches and neck pain. He also wrote:

The patient would be an excellent candidate for radiofrequency lesioning as he had 2 sets of medial branch blocks with consistent and reproducible results with greater than 80% regarding reduction in neck pain for several weeks to months' duration each time.

         Tr. 1642. In August, Plourde underwent radiofrequency lesioning. At a followup visit in September, Dr. Sievers reported:

Scott has posttraumatic neck and head pain. He has recently under[gone] radiofrequency lesioning of the medial branch nerves to multiple cervical facet levels bilaterally. He is seen for followup with very good relief of his symptoms. The patient has stopped having cervicogenic headaches and has very minimal neck ache. He has some residual muscular symptoms from deconditioning but otherwise doing very well, taking a very infrequent tramadol, and thinking about getting back to work.
IMPRESSION: Cervicogenic neck and head pain with excellent results after radiofrequency lesioning.
FOLLOWUP: I expect this to be a long-term result, and I am pleased to report that Scott is doing so well. We will simply leave the door open for him for further treatment if needed.

Tr. 1617. At followup appointments in December of 2015 and January of 2016, Plourde reported a gradual return of his neck pain. In February, Dr. Sievers gave Plourde a diagnosis of “[c]ervical spondylosis and facet arthropathy with chronic cervicalgia, ”[4] Tr. 1586, and performed a second radiofrequency lesioning procedure.

         Between April and December of 2016, Plourde saw Dr. Sievers eight more times. In April, Dr. Sievers wrote: “The patient is doing quite well regarding neck pain, but has been having a lot of occipital headaches.” Tr. 1796. Dr. Sievers continued to report good results from the radiofrequency lesioning with respect to Plourde's neck pain, but he also diagnosed Plourde with “subacute cervical radiculitis, ”[5] Tr. 1803. In June and August, Dr. Sievers gave Plourde cervical epidural steroid injections for his radiculitis, and those treatments were generally effective. See Tr. 2054, 2065.

         2. Headaches

         In July of 2015, Plourde was referred to a neurologist, Dr. Jorge Almodovar Suarez, for treatment of chronic headaches. Dr. Almodovar Suarez diagnosed Plourde with “chronic migraines without aura, with a post-traumatic component, ” Tr. 1548, and he prescribed gabapentin.[6] After a followup visit in October, Dr. Almodovar Suarez reported:

Since the last visit we started gabapentin 600 mg qhs which he thinks has decreased the frequency and intensity of the pain. No[w] he has suffered just a few headaches since the last visit. He has started working part time at this time, and he has been suffering headaches halfway through the day. After work it is quite dramatic

         Tr. 1829. Dr. Almodovar Suarez had this to say after an office visit in April of 2016:

We had attained initial control with gabapentin 300-600. However, after undergoing a cervical spine interventional procedure the headaches worsened. He is scheduled to have occipital nerve blocks soon. He is suffering headaches at least twice a week, and they last days at a time. A prednisone taper did not help with one of those headaches. No. nausea or vomiting with the headaches, but they are quite debilitating.

Tr. 1831.[7]

         Finally, in July of 2016, Plourde received a Depacon infusion for a migraine headache. See Tr. 1918.

         3. Mental Health

         Plourde has been diagnosed with attention deficit hyperactivity disorder (“ADHD”), depression, a learning disorder, opioid dependence, and alcohol dependence. For those conditions, he has treated with several practitioners, including two psychiatrists, Dr. Ekaterina Hurst and Dr. Quentin Turnbull, and a nurse practitioner, Leslie Clukay. From those providers, he has received individual therapy and prescriptions for various medications.

         C. Applications for Benefits

         Plourde first applied for SSI in January of 2012, claiming that he had been disabled since April of 2009 as a result of two neck fractures, a knee injury, headaches, ADHD, asthma, and high blood pressure. He filed a second application for SSI in April of 2015, claiming that he had been disabled since January of 2014 as a result of a broken neck; blood clots in his right lung, right arm, and chest; spondylolisthesis;[8] seven broken vertebrae; numbness in his hands; constant pain in his shoulders, neck, chest, and arms; vertigo; severe migraines; ringing in his ears; ADHD; anxiety; depression; and high blood pressure.

         The SSA denied Plourde's first application, and after a hearing, an administrative law judge (“ALJ”) issued a decision that was unfavorable to Plourde. He appealed, and the SSA Appeals Council (“AC”) remanded his case. After a second hearing: the same ALJ denied benefits again; the AC affirmed the ALJ; Plourde appealed to this court; the Commissioner voluntarily remanded the matter; and the AC vacated the ALJ's second decision on Plourde's first application and consolidated both applications into a single claim.

         In July of 2016, a second ALJ held a third hearing in this matter. That ALJ's determination that Plourde was not disabled is the subject of this appeal.

         D. Opinions on Plourde's Physical Condition

         The Disability Determination Explanation (“DDE”) form that resulted from Plourde's first application includes an assessment of his physical residual functional capacity (“RFC”), [9] made in February of 2012, by Dr. Jonathan Jaffe, a state-agency medical consultant who reviewed Plourde's medical records but did not examine him. According to Dr. Jaffe, Plourde could: (1) lift and/or carry 20 pounds occasionally; (2) lift and/or carry 10 pounds frequently; and (3) push and/or pull the same amount of weight he could lift and/or carry. Dr. Jaffe also opined that Plourde could sit (with normal breaks), and could stand and/or walk (with normal breaks) for about six hours in an eight-hour work day. With respect to postural activities, Dr. Jaffe opined that Plourde could frequently balance, but could only occasionally climb ramp/stairs, climb ladders/ropes/scaffolds, stoop, kneel, or crawl. In his decision, the ALJ gave great weight to Dr. Jaffee's opinions.

         The DDE form that resulted from Plourde's second application also includes an assessment of his physical RFC by a non-examining state-agency physician, and the ALJ gave that RFC assessment little weight. But because the ALJ's evaluation of the physical RFC assessment in the second DDE form is not at issue, there is no need to describe that assessment in any detail.

         In August of 2015, on the same day he performed Plourde's first radiofrequency lesioning, Dr. Sievers completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) on Plourde. In the realm of exertional limitations, Dr. Sievers opined that: (1) Plourde could frequently lift less than ten pounds; (2) his capacities for standing and walking were not affected by his physical impairments; (3) he needed to alternate periodically between sitting and standing to relieve pain; and (4) his capacities for pushing and pulling were limited by his neck pain. When asked to indicate the medical/clinical findings that supported the exertional limitations he posited, Dr. Sievers wrote: “chronic neck pain → worsened by prolonged positioning.” Tr. 1725. In the realm of postural limitations, Dr. Sievers opined that Plourde could occasionally climb ramps/stairs/ladders/ropes/scaffolds, balance, kneel, crouch, crawl, and stoop, and he further noted that more than occasional engagement in those activities would increase Plourde's neck pain. In the realm of manipulative limitations, Dr. Sievers opined that Plourde could only reach overhead occasionally but had an unlimited capacity for handling, fingering, and feeling. With respect to the limitation on overhead reaching, Dr. Sievers explained that “overhead reaching necessitates cervical extension which exacerbates neck pain.” Tr. 1726.

         As for attention/concentration, the form that Dr. Sievers completed asked:

Is it medically reasonable to expect that this patient's ability to maintain attention and concentration on work tasks throughout an 8 hour day is significantly impaired [by] pain, prescribed medication or other factors such that the patient is likely to be off task even 15 to 20% of an 8 hour work day?

Tr. 1726. Dr. Sievers responded: “unaffected unless pain t'd.” Id. The final question on the form asked:

If there is any other medical condition which in your opinion so significantly diminishes this patient's abilities that he cannot consistently perform 5 consecutive 8 hour days of work, on an ongoing basis for the foreseeable future or which could reasonably be expected to cause your patient to lose one or more days from work each month for medical reasons please identify the condition and briefly explain here:

Tr. 1727. Dr. Sievers responded: “N/A.” Id.

         The ALJ gave Dr. Sievers's “opinion partial weight to the extent that he [found] the claimant [was] not unable to work.” Tr. 923.

         In May of 2016, Dr. Almodovar Suarez, the neurologist who was treating Plourde for his headaches, referred him to Samantha Smith, an occupational therapist, for a functional capacity evaluation (“FCE”). Ms. Smith put Plourde through a battery of tests and documented the results in an FCE report. She summarized her findings: “He demonstrates abilities within the sedentary to light [range of] physical demands with lifting tasks and [the] light to medium [range of] demands with pushing and pulling tasks.” Tr. 1846. More specifically, Ms. Smith reported that Plourde had the capacity for: (1) occasional (up to 1/3 of the day) static standing; (2) occasional dynamic standing; (3) occasional walking; and (4) occasional sitting.

         With respect to lifting, pushing, and pulling, she reported:

Occasional/Sedentary (10 pounds up to 1/3 of the work day) with some Light capabilities with a demonstrated ability to lift 17 lbs from floor to knuckle . . .
Occasional/Sedentary (10 pounds up to 1/3 of the work day) with some Light capabilities with a demonstrated ability to lift 12 lbs safely from knuckle to shoulder . . .
Occasional/Sedentary (10 pounds up to 1/3 of the work day) with some Light capabilities with a demonstrated ability to lift 17 lbs safely from to 12 inches to knuckle . . .
[Pushing:] Occasional/Medium (20 to 50 pounds up to 1/3 of the work day) with an initial force of 50 lbsf and a sustained force of 45 lbsf over a distance of 25 feet. . . .
[Pulling:] Occasional/Light (20 pounds up to 1/3 of the work day) with some Medium capabilities with an initial force of 40 lbsf and a sustained force of 35 lbsf over a distance of 25 feet.

Tr. 1844-45 (emphasis added). Ms. Smith further stated that Plourde was capable of occasional climbing, balancing, crouching, prolonged neck positioning, reaching forward, handling, and pinching. Finally, Ms. Smith reported that: (1) Plourde gave “near full levels of physical effort” during testing, Tr. 1843; (2) he might, at times, be able to do more than he demonstrated during testing; and (3) he reported a headache half way through testing and “[t]esting was terminated due to [his] increasing worry about his migraine and his long drive home, in regards to his ability to drive safely, ” Tr. 1846.

         Shortly after Ms. Smith produced her FCE report, Dr. Almodovar Suarez wrote a letter to Plourde in which he said:

I have reviewed the functional capacity report performed [by Ms. Smith] at Elliot Rehabilitation Services on 5/25/2016. Based on your visits with me, your history and evaluation, and response to treatment, I agree with the conclusions of the evaluation report.

1771. However, Dr. Almodovar Suarez did not identify any specific evidence from his treatment notes that supported Ms. Smith's conclusions nor did he even state the conclusions with which he agreed.

         In his decision, the ALJ described Ms. Smith's FEC report as documenting that “the claimant demonstrated sedentary to light duty abilities for lifting tasks and light to medium physical levels for pushing and pulling tasks, despite his self-reporting of limitations to less than sedentary levels, ” Tr. 923, and he gave those findings “partial weight to the extent that [Ms. Smith's FCE report] reflect[ed] [that] the claimant [had] the ability to work at a range of light exertional work.” Tr. 923.

         E. Opinions on Plourde's Mental Condition

         In February of 2012, in connection with an application for Aid to the Permanently and Totally Disabled (“APTD”) from the State of New Hampshire, Dr. Hurst, who had treated Plourde, completed a Psychiatric Evaluation on him. She gave diagnoses of ADHD and depression. In addition, she offered opinions on Plourde's deficits in four areas of functioning. She opined that he had a marked degree of functional loss in the area of daily activities, [10] a marked degree of functional loss in the area of social interactions, [11] a constant degree of functional loss in the area of work-related task performance, [12] and a continual degree of functional loss in the area of work-related stress reaction.[13] The ALJ gave little weight to Dr. Hurst's opinions.

         The DDE form that resulted from Plourde's first application includes a psychiatric review technique (“PRT”) assessment performed in March of 2012 by Dr. Michael Schneider, a state-agency psychological consultant who reviewed Plourde's medical records but did not examine him.[14] Dr. Schneider considered two mental impairments, organic mental disorders and affective disorders, but determined that while Plourde had been diagnosed with those impairments, neither of them was sufficiently severe to satisfy the criteria that define an impairment that is per se disabling under the SSA's regulations. With respect to the so-called paragraph B criteria, Dr. Schneider determined that Plourde had: mild restrictions of his activities of daily living; mild difficulties in maintaining social ...

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