United States District Court, D. New Hampshire
Tina M. Raymond, Claimant
Andrew Saul,  Commissioner, Social Security Administration, Defendant
M. Golden Hallisey, Esq. Lisa G. Smoller, Esq.
J. McAuliffe, United States District Judge.
to 42 U.S.C. § 405(g), claimant, Tina Raymond, moves to
reverse or vacate the Commissioner's decision denying her
application for Disability Insurance Benefits under Title II
of the Social Security Act (the “Act”). See 42
U.S.C. § 423. The Commissioner objects and moves for an
order affirming his decision.
reasons discussed, claimant's motion is denied, and the
Commissioner's motion is granted.
October of 2016, claimant filed an application for Disability
Insurance Benefits (“DIB”), alleging that she was
disabled and had been unable to work since February 13, 2013.
Claimant was 49 years old at the time of her alleged onset of
disability and had acquired sufficient quarters of coverage
to remain insured through December 31, 2018. Claimant's
application was denied and she requested a hearing before an
Administrative Law Judge (“ALJ”).
January of 2018, claimant, her attorney, an independent
medical expert (Dr. John Kwock, a board certified orthopedic
surgeon), and a vocational expert appeared before an ALJ, who
considered claimant's applications de novo. During Dr.
Kwock's testimony, claimant became agitated and left the
room. She returned and Dr. Kwok completed his testimony, as
did claimant. At that point, the hearing had gone on for
about an hour, the ALJ indicated that he had to end it soon,
and the vocational expert had yet to testify. Claimant's
attorney asked the ALJ for a continuance, so the vocational
expert could give testimony. Claimant's counsel also
asked that the ALJ arrange for claimant to undergo a
psychological examination. The ALJ agreed to continue the
hearing, but declined to rule on the request for a
psychological examination until after he had the opportunity
to more carefully review claimant's medical records -
particularly those related to her mental health. Ultimately,
the ALJ declined to order the psychological examination and
neither claimant nor her counsel arranged for claimant to
undergo such an examination.
hearing was continued to May 16, 2018, at which the ALJ heard
testimony from a second independent medical expert, Dr. James
Claiborn (a board certified psychologist), and Jane Gerrish,
an impartial vocational expert. Four weeks later, the ALJ
issued his written decision, concluding that claimant was not
disabled, as that term is defined in the Act, at any time
prior to the date of his decision. Claimant requested review
by the Appeals Council. That request was denied. Accordingly,
the ALJ's denial of claimant's application for
benefits became the final decision of the Commissioner,
subject to judicial review. Subsequently, claimant filed a
timely action in this court, asserting that the ALJ's
decision is not supported by substantial evidence.
then filed a “Motion for Order Reversing Decision of
the Commissioner” (document no. 7). In response, the
Commissioner filed a “Motion for an Order Affirming the
Decision of the Commissioner” (document no. 9). Those
motions are pending.
detailed factual background can be found in claimant's
statement of facts (document no. 8) and the
Commissioner's statement of facts (document no. 10).
Those facts relevant to the disposition of this matter are
discussed as appropriate.
“Substantial Evidence” and Deferential Review.
to 42 U.S.C. § 405(g), the court is empowered “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.” Factual findings
and credibility determinations made by the Commissioner are
conclusive if supported by substantial evidence. See 42
U.S.C. §§ 405(g), 1383(c)(3). See also Irlanda
Ortiz v. Secretary of Health & Human Services, 955
F.2d 765, 769 (1st Cir. 1991). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). Importantly, then, it is something less than a
preponderance of the evidence. So, the possibility of drawing
two inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from being
supported by substantial evidence. See Consolo v. Federal
Maritime Comm'n., 383 U.S. 607, 620 (1966). See
also Richardson v. Perales, 402 U.S. 389, 401 (1971).
Parties' Respective Burdens.
individual seeking DIB benefits is disabled under the Act if
he or she is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The Act places a heavy initial
burden on the claimant to establish the existence of a
disabling impairment. See Bowen v. Yuckert, 482 U.S.
137, 146-47 (1987); Santiago v. Secretary of Health &
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To
satisfy that burden, the claimant must prove, by a
preponderance of the evidence, that her impairment prevents
her from performing her former type of work. See
Manso-Pizarro v. Secretary of Health & Human
Services, 76 F.3d 15, 17 (1st Cir. 1996); Gray v.
Heckler, 760 F.2d 369, 371 (1st Cir. 1985). If the
claimant demonstrates an inability to perform her previous
work, the burden shifts to the Commissioner to show that
there are other jobs in the national economy that she can
perform, in light of her age, education, and prior work
experience. See Vazquez v. Secretary of Health &
Human Services, 683 F.2d 1, 2 (1st Cir. 1982). See also
20 C.F.R. § 404.1512.
assessing a disability claim, the Commissioner considers both
objective and subjective factors, including: (1) objective
medical facts; (2) the claimant's subjective claims of
pain and disability, as supported by the claimant's
testimony or that of other witnesses; and (3) the
claimant's educational background, age, and work
experience. See, e.g., Avery v. Secretary of Health &
Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human
Services, 690 F.2d 5, 6 (1st Cir. 1982). Ultimately, a
claimant is disabled only if her:
physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous
work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which [she]
lives, or whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A).
those principles in mind, the court reviews claimant's
motion to reverse and the ...