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Raymond v. Saul

United States District Court, D. New Hampshire

January 10, 2020

Tina M. Raymond, Claimant
Andrew Saul, [1] Commissioner, Social Security Administration, Defendant

          Brenda M. Golden Hallisey, Esq. Lisa G. Smoller, Esq.


          Steven J. McAuliffe, United States District Judge.

         Pursuant 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.

         For the reasons discussed, claimant's motion is denied, and the Commissioner's motion is granted.

         Factual Background

         I. Procedural History.

         In 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”).

         In 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.

         The 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.

         Claimant 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.

         II. Factual Background.

         A 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.

         Standard of Review

         I. “Substantial Evidence” and Deferential Review.

         Pursuant 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).

         II. The Parties' Respective Burdens.

         An 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.

         In 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).

         With those principles in mind, the court reviews claimant's motion to reverse and the ...

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