United States District Court, D. New Hampshire
A. Wicklund, Esq. Janine Gawryl, Esq. Hugh Dun Rappaport,
MEMORANDUM AND ORDER
J. BARBADORO UNITED STATES DISTRICT JUDGE
Edwards challenges the denial of her claims for Disability
Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), respectively. She
contends that the Administrative Law Judge
(“ALJ”) erred by (1) failing to give proper
weight to the opinion of an examining physician; (2) failing
to give proper weight to the opinion of Edwards's
treating physician; and (3) failing to properly consider
whether Edwards's impairments met or equaled Listing 1.02
or 1.04. 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
Commissioner, in turn, moves for an order affirming the
ALJ's decision. For the following reasons, I deny
Edwards's motion and affirm the decision of the
parties have submitted statements of material facts as
required by Local Rule 9.1(b). Many of the relevant facts are
set out in a previous decision by this court, Edwards v.
Berryhill, No. 17-cv-232-AJ, 2018 WL 1221159 (D.N.H.
Mar. 7, 2018). I decline to repeat them here in detail.
Rather, I focus on facts relevant to this appeal, including
facts developed after the previous decision was issued.
filed her current claim for DIB and SSI in February 2012,
alleging a disability onset date of May 6, 2009. Tr. at 150.
After an initial denial in May 2012, Edwards's claim was
heard before ALJ Ruth Kleinfeld in July 2013. Tr. at 173. The
ALJ issued an unfavorable decision that November, Tr. at
173-82, which Edwards appealed to the Appeals Council. Tr. at
187. The Appeals Council remanded Edwards's case and
another hearing was conducted on November 10, 2015 before ALJ
Dory Sutker. Tr. at 1209-77. ALJ Sutker addressed the issues
raised by the Appeals Council but ultimately issued another
unfavorable decision on December 16, 2015, Tr. at 1111-35.
second request for review by the Appeals Council was denied,
so she appealed to this court. Tr. at 1141-46. Edwards raised
several issues with the ALJ's opinion, including that the
ALJ's decision to discount the opinion of examining
physician Dr. Frank Graf was not supported by substantial
evidence. The ALJ had discounted Dr. Graf's opinion
because she found that the responses on Dr. Graf's
medical source statement were contradictory, that Dr.
Graf's opinions were not supported by the report he
prepared, and that Dr. Graf's opinion on Edwards's
capacity for sitting was not consistent with Edwards's
own testimony. Edwards, 2018 WL 1221159, at *7.
March 7, 2018, Magistrate Judge Johnstone remanded
Edwards's case to the Commissioner on the grounds that
none of these reasons was sufficient for discounting Dr.
Graf's opinion. Id. First, she found that the
apparently contradictory responses in Dr. Graf's
statement were most logically explained as an inadvertent
transposing of two answers. Id. at *6. Next, she
determined that the ALJ's assertion that Dr. Graf's
opinions were not supported by evidence was conclusory and
that Dr. Graf had, in fact, provided examination findings to
back up his conclusions. Id. Finally, she concluded
that, while the ALJ had found that Dr. Graf's opinion
that Edwards should be limited to one hour of sitting was
inconsistent with Edwards's testimony about how she spent
her days, Magistrate Judge Johnstone determined that there
was no inconsistency because Edwards had stated that she
spent most of her time reclining, and reclining is
distinct from sitting. Id. at *7.
Judge Johnstone also identified several issues for the
Commissioner to address on remand. Id. Specifically,
Magistrate Judge Johnstone noted instances where the ALJ
misstated Edwards's history of hospitalization,
misidentified a non-medical SSA employee as a “medical
physician, ” improperly afforded weight to the fact
that Dr. Graf was the only physician who noted an issue with
Edwards's right ankle reflexes, and provided insufficient
justification for giving “greatest weight” to the
opinion of expert medical witness Dr. John Kwock.
Id. at *8-9.
remand, ALJ Sutker conducted a third hearing on November 20,
2018, Tr. at 894-975, and issued an unfavorable decision on
February 26, 2019, Tr. at 870-87. The Appeals Council denied
review, and Edwards appealed to this court.
disability claim is principally based upon failed back
surgeries (in July 2009 and January 2014) and a failed knee
replacement (in August 2013). Tr. at 900-01. Edwards has also
been diagnosed with mental impairments, such as bipolar
disorder, depression, and anxiety. Tr. at 619, 625, 627. In
addition to surgical intervention, Edwards has been treated
with numerous prescription medications. See
Pl.'s Statement of Material Facts, Doc. No. 8-1 at 1
(listing medications). She also claims to suffer some side
effects of these medications related to her memory and motor
function. Tr. at 377.
at least 2009, Dr. Melissa Hanrahan has treated Edwards for
these and other ailments. Tr. at 409. In addition to years of
treatment records, Dr. Hanrahan provided two medical opinions
relevant to this appeal. First, in June 2013, she completed a
form that rated Edwards's limitations in various
categories from “Mild or None” to
“Extreme.” Tr. at 688-89. On this form, Dr.
Hanrahan further concluded that Edwards could not sustain an
average eight-hour workday because her “severe anxiety
[and] panic limits her ability to focus at work.” Tr.
at 689. Second, in October 2015, Dr. Hanrahan provided a
letter that stated that Edwards “could not work a full
day due to fatigue, chronic pain and needing to change
positions frequently.” Tr. at 864.
Graf performed a consultative examination of Edwards in April
2015. Tr. at 792-801. He identified substantial impairments
in Edwards's ability to bend, stoop, lift, and carry,
with diminished tolerance for walking. Tr. at 793.
Specifically, Dr. Graf opined that Edwards could never lift
more than twenty pounds or carry more than ten pounds. Tr. at
795. Additionally, he found that she could only spend one
hour sitting, thirty minutes standing, and twenty minutes
walking in an eight-hour workday, with the remainder of her
time to be spent reclining. Tr. at 796.
hearing, ALJ Sutker heard testimony from Dr. Darius Ghazi, an
orthopedic surgeon who had reviewed Edwards's medical
records. Tr. at 920-21. After recounting some of
Edwards's treatment history, Dr. Ghazi opined that
Edwards met the criteria for Listing 1.02A and 1.04C. Tr. at
923. When asked which objective medical evidence in the
record supported a finding that Edwards could not ambulate
effectively, as is required by 1.02A, Dr. Ghazi stated only
that he believed that anyone with a knee replacement has an
inability to ambulate effectively. Tr. at 925. When asked
which objective medical evidence in the record documented
pseudo-claudication, as required by Listing 1.04C, Dr. Ghazi
replied that he “didn't see anything.” Tr. at
Ghazi opined that Edwards could lift five pounds frequently
and ten pounds occasionally. Tr. at 927. He believed she
could stand and/or walk for two hours at a time for a total
of about four hours in an eight-hour workday, sit for six
hours, and occasionally require a cane to walk. Tr. at 928.
Dr. Ghazi disagreed with several of Dr. Graf's findings.
Specifically, Dr. Ghazi believed that Dr. Graf had overstated
Edwards's capacity for carrying, Tr. at 933, and thought
that there was no objective medical evidence to support Dr.
Graf's restrictions on Edwards's use of her arms and
her capacity for sitting, Tr. at 936-37.
had two consultative examinations for her mental impairments:
one in May 2012 by Dr. Michael Evans, Tr. at 584- 87, and one
in May 2015 by Dr. Trina Jackson, Tr. at 782-91. While these
two doctors noted that Edwards had had psychological issues
in the past, they both found her to have mild to no mental
impairments at present. Tr. at 586-87 (listing normal or
mildly limited levels of functioning in all categories and a
“good” psychiatric prognosis), 785 (noting
“good” social skills, “intact” memory
and cognition, “good” concentration and
persistence, and “mild difficulty with stress
The ALJ's Decision
one of the five-step disability evaluation process, ALJ
Sutker found that Edwards had not engaged in substantial
gainful activity since May 6, 2009, her alleged disability
onset date. Tr. at 875. At step two, she found that Edwards
had several severe impairments: “chondromalacia and
osteoarthritis of the left knee, status post total knee
replacement; degenerative disc disease of the lumbar spine;
obesity; bipolar disorder; anxiety[;] and depression.”
Tr. at 875.
to this appeal, at step three, the ALJ considered whether
Edwards's impairments met or equaled Listing 1.02 or
1.04. Tr. at 876. The ALJ recounted the criteria
of Listing 1.02 and found that there was “no
evidence” to support a finding that Edwards met them.
Tr. at 876. The ALJ then recounted the criteria of Listing
1.04 and found that the evidence did not demonstrate that it
was “met or medically equaled in this case.” Tr.
finding that Edwards did not meet or equal any listed
impairment, the ALJ formulated her Residual Functional
Capacity (“RFC”). Tr. at 878. Specifically, the
ALJ determined that Edwards had the RFC to perform sedentary
work, subject to several additional restrictions. Relevant to
this appeal, she determined that Edwards could “lift
and carry ten pounds occasionally and five pounds frequently;
sit for a total of six hours and stand and/or walk for four
hours total out of an eight-hour workday with normal
breaks” Tr. at 878. The ALJ also found that Edwards
would need to use a cane at her discretion when ambulating
and that, although her “pace is somewhat variable, . .
. she is able to stay on task at least 90% of the
workday.” Tr. at 878.
reaching this conclusion, the ALJ determined that Dr.
Hanrahan's checklist-style form had “little to no
probative value because it is not supported by any objective
evidence.” Tr. at 884. Specifically, the ALJ found that
Edwards's daily activities, such as “babysitting,
preparing simple meals[, ] and performing light household
chores” were inconsistent with the Edwards's
“allegations of disabling functional
limitations.” Tr. at 884. With regard to Dr.
Hanrahan's 2015 opinion that Edwards “could not
work a full day due to fatigue [and] chronic pain and needed
to change positions frequently, ” the ALJ noted that
she was “not persuaded” because the opinion was
“conclusory in nature, fails to give disabling
limitations[, ] and is an assessment of [Edwards's]
ability to engage in basic work[-]like activities, which is
an opinion reserved to the Commissioner.” Tr. at 885.
Although the ALJ did not assign Dr. Hanrahan's opinion
“the controlling weight ordinarily assigned to a
treating physician[']s report commenting on the
claimant's abilities, ” she did not ignore Dr.
Hanrahan's observations and findings and “carefully
considered [them] in providing insight as to functional
ability and how they affect [Edwards's] ability to
work.” Tr. at 885.
gave “some weight” to Dr. Graf's 2015
opinion. Tr. at 884. After summarizing Dr. Graf's
findings, the ALJ gave Dr. Graf's opinion less weight
than would ordinarily be assigned to an examining physician
because “more contemporaneous treatment notes do not
support [Dr. Graf's] restrictions in standing and
walking. Specifically, physical examinations recently showed
no gait abnormalities and described [Edwards] as active in
performing daily activities and household chores.” Tr.
at 884. The ALJ also noted that Dr. Ghazi had disagreed with
some aspects of Dr. Graf's report. Tr. at 883.
Specifically, Dr. Ghazi could find no evidence to support Dr.
Graf's restrictions on Edwards's standing and walking
other than her history of reconstructive surgery, and he was
unable to find any support in the record at all for Dr.
Graf's opined limitations on Edwards's sitting and
use of her upper extremities. Tr. at 883.
the ALJ gave “great weight” to the opinion of Dr.
Ghazi, based upon an evaluation several factors, including
“supportability, including the degree of explanation
and support by objective evidence; consistency with the
record as a whole; [and] degree of specialization in the area
of medicine involved.” Tr. at 883. The ALJ noted that
“Dr. Ghazi is an orthopedic surgeon, he has an
awareness of all the evidence in the record, and he has an
understanding of social security disability programs and
evidentiary requirements.” Tr. at 883. “Most
importantly, his opinion regarding [Edwards's] functional
limitations is highly persuasive because it is well-supported
by the objective medical evidence.” Tr. at 883-84.
gave “some weight” to the 2012 opinion of Dr.
Evans because “more recent treatment notes showed
relatively normal mental status examination and good control
of depression and anxiety with prescribed medication.”
Tr. at 881. She also gave “great weight” to the
opinion of Dr. Jackson because she was an examining physician
who “had an opportunity to observe [Edwards].”
Tr. at 881-82. However, while Dr. Jackson had opined no
limitations in Edwards's ability to stay on task during
the workday, the ...