Blakley v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Blakley
v. Civil No. 18-cv-702-LM
Opinion No. 2019 DNH 165
Andrew M. Saul, Commissioner
Social Security Administration1
O R D E R
Eric Blakley seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Commissioner of the Social
Security Administration denying his applications for disability
insurance benefits and supplemental security income. In moving
to reverse the decision, Blakley contends that the
Administrative Law Judge (“ALJ”) erred in making the residual
functional capacity assessment and in failing to consider a
prior decision by a different ALJ. The Commissioner moves to
affirm.
STANDARD OF REVIEW
The court’s review of the final decision of the Acting
Commissioner in a social security case “is limited to
1 This action was originally brought against Nancy A.
Berryhill in her capacity as the Acting Commissioner of the
Social Security Administration. Andrew M. Saul has since been
appointed Commissioner and has been automatically substituted.
See Fed. R. Civ. P. 25(d).
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determining whether the [Administrative Law Judge (“ALJ”)]
deployed the proper legal standards and found facts upon the
proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st
Cir. 2001). The court defers to the ALJ’s factual findings if
they are supported by substantial evidence even if the record
could arguably support a different result. § 405(g); Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); Irlanda
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 770 (1st
Cir. 1991). Substantial evidence is “more than a scintilla of
evidence” but less than a preponderance. Purdy v. Berryhill,
887 F.3d 7, 13 (1st Cir. 2018).
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. §§ 404.1520 & 416.920.2 The
claimant bears the burden through the first four steps of
proving that his impairments preclude him from working. Purdy,
887 F.3d at 9. The first three steps are (1) determining
whether the claimant is engaged in substantial gainful activity;
(2) determining whether he has a severe impairment; and (3)
2 Because the regulations implementing the applicable
standards for disability under Title II and Title XVI are the
same for purposes of this case, the court will cite the Title II
regulations in Part 404. See Sullivan v. Zebley, 493 U.S. 521,
525 n.3 (1990).
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determining whether the impairment meets or equals a listed
impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite his limitations caused by impairments, id.
§ 404.1545(a)(1), and his past relevant work, id.
§ 404.1520(a)(4)(iv). If the claimant can perform his past
relevant work, the ALJ will find that the claimant is not
disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot
perform his past relevant work, the ALJ proceeds to Step Five,
in which the ALJ has the burden of showing that jobs exist in
the economy which the claimant can do in light of the RFC
assessment. See id. § 404.1520(a)(4)(v).
BACKGROUND
A detailed factual background can be found in Blakley’s
statement of facts (doc. no. 10) and the Commissioner’s
statement of facts (doc. no. 12). The court provides a brief
summary of the case here.
I. Procedural Background
On December 17, 2012, Blakley applied for disability
insurance benefits and supplemental security income. After
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Blakley’s applications were denied, he requested a hearing
before an ALJ. On April 24, 2013, the ALJ held a hearing, after
which she denied Blakley’s claim for benefits in a written
decision dated October 9, 2014. In that decision, the ALJ found
that Blakley had the residual functional capacity to do work at
the sedentary level with certain restrictions and that he was
not disabled. The Appeals Council denied Blakley’s request for
review, making the ALJ’s decision the Commissioner’s final
decision. Blakley brought an action in federal court
challenging that decision. See Blakley v. U.S. Soc. Sec.
Admin., Acting Comm’r, 15-cv-397-LM (D.N.H. Sep. 29, 2015).
On April 6, 2016, upon an assented-to motion by the
Commissioner, the district court remanded the federal court
action to the Commissioner for further administrative
proceedings. The Appeals Council subsequently vacated the
Commissioner’s decision and remanded the case to an ALJ to: (1)
further evaluate Blakley’s mental impairments; (2) further
consider the medical source opinions of James Samson, an
occupational therapist, Dr. Jonathan Sixon, Blakley’s treating
physician, and Dr. Jonathan Jaffe, a state agency consultant;
(3) reassess Blakley’s residual functional capacity and obtain
testimony from a vocational expert to support the ALJ’s Step
Five finding. See Admin. Rec. at 692-94.
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On April 25, 2017, a different ALJ held a second hearing.
Blakley, who was represented by an attorney, and his wife,
Jennifer Blakley, appeared at the hearing and testified.
Dr. Robert Thompson, a medical expert, testified by phone.
Elizabeth Laflamme, a vocational expert, was available to
testify by phone, but the ALJ did not seek testimony from her.
II. ALJ’s Decision
On May 24, 2017, the ALJ issued an unfavorable decision.
She found that Blakley had a severe impairment due to chronic
pain syndrome but found that he did not have a severe impairment
due to degenerative disc disease or due to any mental
impairment.
Unlike in the first decision, which found that Blakley was
capable of sedentary work, the ALJ found that Blakley had the
residual functional capacity to do light work with certain
restrictions. The restrictions included that Blakley could
never climb ladders, ropes, or scaffolds and could do other
postural activities only occasionally.
In assessing Blakley’s RFC, the ALJ considered Blakley’s
testimony as to his activities of daily living and symptoms, as
well as his medical records and the medical opinion evidence.
As directed by the Appeals Council, the ALJ reassessed the
opinion evidence of Blakley’s treating physician, Dr. Sixon, his
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occupational therapist, James Samson, and the state agency
consultant, Dr. Jaffe. As discussed further infra, the ALJ gave
Dr. Sixon’s and Samson’s opinions little weight and gave Dr.
Jaffe’s opinion great weight. In addition, in assessing
Blakley’s RFC, the ALJ gave significant weight to the opinion of
the impartial medical expert, Dr. Thompson.
The ALJ then used the Medical-Vocational Guidelines to find
at Step Five that Blakley was not disabled, concluding that the
additional postural limitations on Blakley’s ability to do light
work had little or no effect on the base of unskilled work. The
Appeals Council denied Blakley’s request for review, making the
ALJ’s decision the Commissioner’s final decision. This action
followed.
DISCUSSION
Blakley moves to reverse the Commissioner’s decision on the
ground that the ALJ erred in assessing his residual functional
capacity. Specifically, Blakley contends that the ALJ
improperly weighed the medical opinion evidence and erred in
failing to consider the residual functional capacity assessment
done by the prior ALJ before the case was remanded to the
Appeals Council.
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I. Medical Opinions
Blakley first contends that the ALJ erred in her evaluation
of several medical opinions in the record. Specifically, he
argues that the ALJ erroneously gave little weight to Dr.
Sixon’s and Samson’s opinions. He also contends that the ALJ
erred in giving great weight to Dr. Jaffe’s opinion.
An ALJ is required to consider medical opinions along with
all other relevant evidence in a claimant’s record. 20 C.F.R. §
404.1527(b). “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and
severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” § 404.1527(a)(1).
Medical opinions are evaluated based upon the nature of the
medical source’s relationship with the claimant, the extent to
which the source provides evidence to support the opinion, the
extent the opinion is consistent with other evidence in the
record, the specialization of the medical source, and other
factors including the understanding the source has of the social
security system. § 404.1527(c); see also Johnson v. Berryhill,
No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H. Oct. 12, 2017).
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A. Dr. Sixon
In general, an ALJ will give more weight to the opinion of
a treating source and may give that opinion controlling weight
if it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” §
404.1527(c)(2). The ALJ is required to give “good reasons” in
the disability decision for the weight given to treating source
opinions. Id. “Those reasons must offer a rationale that could
be accepted by a reasonable mind.” Dimambro v. US Soc. Sec.
Admin., Acting Comm’r, No. 16-cv-486-PB, 2018 WL 301090, at *10
(D.N.H. Jan. 5, 2018). If the ALJ satisfies that standard, the
court will uphold the decision to discount a treating source’s
opinion. Id.
Dr. Sixon began treating Blakley as his primary care
physician in January 2012 and continued to do so regularly
through 2016. Dr. Sixon provided two opinions in the case: (1)
a medical source statement dated December 31, 2013 (“the 2013
opinion”) and (2) a medical source statement dated April 7, 2014
(“the 2014 opinion”).
The ALJ addressed both the 2013 opinion and the 2014
opinion in her decision. She noted that in the 2013 opinion,
Dr. Sixon found that Blakley was unable to do work at even the
sedentary exertional level, required a cane to walk, and would
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have to spend more than half of every day lying down. In the
2014 opinion, Dr. Sixon stated that Blakley was not capable of
working a 40-hour workweek, and that Blakley would need to miss
more than four days per month and take a take a 15-20-minute
break each hour where he could lie down.
The ALJ acknowledged that Dr. Sixon was Blakley’s primary
treating physician with a lengthy treatment history. The ALJ
reviewed and discussed Dr. Sixon’s treatment notes starting in
May 2012, when Dr. Sixon noted that Blakley was quitting his job
so that he could work on building his new house. The ALJ noted
the contrast between the extent of pain and limitations Blakley
expressed and the examination, test, and imaging results over
the course of his treatment.
The ALJ also noted that during the spring of 2013 Blakley
reported to Dr. Sixon that he could not walk more than a few
feet without a cane, although Dr. Sixon had not prescribed a
cane. At the same time, however, Blakley reported to Dr. Sixon
that he also sought treatment for his finger that he injured
while cutting sheetrock, which suggested that Blakley was
engaged in physical activity inconsistent with his reported
significant limitations. The ALJ further noted several times
when Blakley admitted he had taken more Percocet and Oxycodone
than had been prescribed. In addition, in April 2014, Dr. Sixon
wrote that Blakley’s “pain syndrome seems to far outweigh his
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findings on exam,” indicating that Blakley’s reported symptoms
were not related to his degenerative disc disease. Admin. Rec.
at 1043. Later examination notes showed increased functioning
and the need for detox from his narcotic medications.
Before addressing Dr. Sixon’s opinions, the ALJ explained
that she gave significant weight to the opinions provided by Dr.
Thompson who found that there was limited orthopedic evidence to
support the claimed limitations, that chronic pain syndrome was
Blakley’s primary issue, and that there was no evidence to
support sensory loss, motor weakness, atrophy, or abnormal
reflexes. The ALJ also noted that Dr. Thompson found that
Blakley had poor endurance and side effects from medications
which affected his functional capacity.3
The ALJ explained that she gave Dr. Sixon’s opinions little
weight because of the lack of objective evidence in the record
to support the limitations Dr. Sixon found, because the opinions
were internally inconsistent. She further noted that the
opinions did not cite supporting evidence from the record.
Blakley challenges that assessment on the grounds that the
ALJ did not provide sufficiently specific reasons and erred in
finding Dr. Sixon’s opinions unsupported by the record. The
court disagrees. As stated above, in giving little weight to
3 Blakley does not challenge the ALJ’s decision to give
great weight to Dr. Thompson’s opinion.
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Dr. Sixon’s opinions, the ALJ discussed Dr. Sixon’s treatment
notes and other medical evidence in the record. Although
Blakley points to other evidence in the record that he argues is
consistent with Dr. Sixon’s opinion, an ALJ is required to
provide good reasons for the weight given to a treating
physician’s opinion, not to “slavishly discuss” every relevant
factor. Diaz v. Colvin, 14-cv-13363-IT, 2016 WL 2992909, at *2
(D. Mass. Mar. 28, 2016); see Applebee v. Berryhill, 744 F.
App’x 6 (1st Cir. 2018) (“While the record arguably could
support a different conclusion, there is clearly substantial
evidence to support the ALJ’s findings.”). In this case, the
ALJ’s reasons are sufficient to meet the regulatory standard.
B. Dr. Jaffe
The ALJ gave great weight to the March 2013 opinion of Dr.
Jaffe, a state agency consultant who did not treat or examine
Blakley but reviewed the evidence in the record.4 Dr. Jaffe
opined that Blakley had functional limitations consistent with
4 An ALJ weighs the opinions of state agency consultants
using the same standard as is applied to other medical opinions.
Ledoux v. Acting Comm’r, Soc. Sec. Admin., 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018).
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those included in the ALJ’s RFC assessment.5 The ALJ found that
Dr. Jaffe’s opinion was entitled to great weight because he
supported his opinion with specific citations to the evidence of
record and clinical findings, and his opinion was consistent
with Blakley’s reported activities of daily living.
Blakley contends that the ALJ erred in giving great weight
to Dr. Jaffe’s opinion. Blakley argues that Dr. Jaffe’s opinion
does not provide supporting evidence for the ALJ’s RFC
assessment because it was based on a severe impairment of
degenerative disc disease, which the ALJ found to be non-severe.
He also contends that Dr. Jaffe’s opinion was not based on the
entire record. The Commissioner argues that the ALJ properly
relied on Dr. Jaffe’s opinion.
1. Diagnosis
As discussed above, the ALJ found at Step Two that Blakley
had a severe impairment of chronic pain syndrome. Blakley
argues that the ALJ erred in relying on Dr. Jaffe’s opinion
because Dr. Jaffe opined that Blakley had degenerative disc
disease, an impairment that the ALJ found to be non-severe.
5 The ALJ’s RFC assessment is slightly more restrictive than
Dr. Jaffe’s assessment, in that, unlike Dr. Jaffe’s, the ALJ’s
assessment precludes Blakley from climbing ladders, ropes, and
scaffolds.
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Although Dr. Jaffe found that Blakley had a severe
impairment which the ALJ found to be non-severe, that fact does
not show that the ALJ erred in giving great weight to Dr.
Jaffe’s opinion as to Blakley’s functional limitations. Blakley
offers no support for his theory that an ALJ’s different
conclusion as to a claimant’s severe impairment precludes his
reliance on another portion of a medical opinion, and such a
theory is contrary to caselaw. See, e.g., Evangelista v. Sec’y
of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987)
(“The basic idea which the claimant hawks—the notion that there
must always be some super-evaluator, a single physician who
gives the factfinder an overview of the entire case—is
unsupported by the statutory scheme, or by the caselaw, or by
common sense, for that matter.”); accord Whitney v. Saul, 19-
11095-JCB, 2019 WL 4072021, at *8 (D. Mass. Aug. 29, 2019) (An
“ALJ is entitled to piece together the relevant medical facts
from the findings of multiple physicians.”).
Indeed, Dr. Sixon, whose opinion Blakley argues was
entitled to great weight, also opined in 2013 that Blakley’s
symptoms were caused by his degenerative disc disease. See
Admin. Rec. at 47. In April 2014, Dr. Sixon suggested that
Blakley’s symptoms and limitations may instead be due to chronic
pain syndrome, rather than disc disease. See id. at 1043, 1046.
Thus, Blakley asks the court to disregard Dr. Jaffe’s opinion as
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to Blakley’s functional limitations but rely on Dr. Sixon’s 2013
opinion, despite the fact that both were based on a diagnosis of
degenerative disc disease. The court declines to do so, and
Blakley has not shown that the difference in the underlying
severe impairment undermines the ALJ’s reliance on Dr. Jaffe’s
opinion.
2. Sufficiency of the Record
Blakley also argues that Dr. Jaffe’s opinion lacks merit
because the record was incomplete in March 2013 when Dr. Jaffe
gave his opinion. An opinion from a state agency consultant
that is based on a “significantly incomplete record” cannot be
accorded “significant weight” or provide substantial evidence to
support a residual functional capacity assessment. Alcantara v.
Astrue, 257 F. App’x 19, 21 (1st Cir. 2007); Guyette v.
Berryhill, 17-cv-486-LM, 2019 WL 1199395, at *3 (D.N.H. Mar. 14,
2019). The record is significantly incomplete if the evidence
added after the consultant’s review materially changed the basis
for assessing the claimant’s limitations. Alcantara, 257 F.
App’x at 334. “The record remains materially unchanged where
the new evidence either reveals no greater limitations or is
arguably consistent with the consultant’s assessment.”
Giandomenico v. U.S. Soc. Sec. Admin., 16-cv-506-PB, 2017 WL
5484657, at *4 (D.N.H. Nov. 15, 2017).
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“The ALJ bears the burden of determining and explaining
whether missing evidence is material to assessing the claimant’s
limitations.” Avery v. Acting Comm’r, Soc. Sec. Admin., 17-cv-
443-JD, 2018 WL 2376507, at *4 (D.N.H. May 24, 2018); see also
Alcantara, 257 F. App’x at 334; Laberge v. Berryhill, 18-cv-257-
JL, 2018 WL 6819328, at *8 (D.N.H. Dec. 28, 2018). It is
insufficient for the ALJ to simply state that the record was not
materially changed. Alcantara, 257 F. App’x at 334. Instead,
the ALJ must make the absence of change adequately clear.
Giandomenico, 2017 WL 5484657, at *4.
Blakley cites Dr. Sixon’s 2013 opinion and 2014 opinion,
and the MRI imaging done in December 2013 as material medical
evidence that post-dated Dr. Jaffe’s opinion. The ALJ
acknowledged that additional medical evidence was added to the
record after Dr. Jaffe’s review. She stated that the new
evidence did not show any meaningful change or deterioration in
Blakley’s functioning because his clinical examinations remained
the same throughout the period.
The ALJ then addressed the clinical examination notes in
detail. In doing so, the ALJ emphasized the contrast between
Blakley’s claimed pain and severe impairments and the clinical
findings that did not support that level of impairment. The ALJ
also noted that while Dr. Sixon had initially relied on
degenerative disc disease as shown in the MRI results as the
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cause of Blakley’s symptoms, in April 2014, Dr. Sixon indicated
that chronic pain syndrome outweighed the clinical examination
results and questioned whether Blakley’s pain was due to Lyme
disease rather than degenerative disc disease.6 Dr. Sixon’s
change in diagnostic focus decreases the materiality of the
December 2013 MRI results for assessing his functional capacity.
The ALJ found that the more recent medical evidence did not
show deterioration in functioning after Dr. Jaffe issued his
opinion. Blakley has not pointed to contrary evidence. Blakley
also has not shown that subsequent questions about the causes of
Blakley’s pain demonstrate deterioration in his ability to
function. Therefore, the ALJ adequately explained why the later
evidence was not material to an assessment of Blakley’s
functional capacity. As such, the ALJ did not err in relying on
Dr. Jaffe’s opinion despite the fact that additional evidence
was added to the record after the opinion.
C. Occupational Therapist Samson
The ALJ gave little weight to Samson’s March 2014 opinion.
Samson opined that Blakley could not lift any weight from floor
to waist and could lift and carry five pounds at waist level or
6 Dr. Sixon referred Blakley to Dr. Carr for Lyme disease
testing, which was negative, but Dr. Carr nevertheless suspected
Lyme disease or a Lyme disease infection as a cause of his pain.
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higher. He also opined that Blakley had a severe balance
deficit, that he could sit, stand, and walk occasionally, that
he would be absent from work more than four days per month, and
that he could work only 20 hours per week.
The ALJ explained that Samson’s opinion was based on
Blakley’s one-time functioning during an evaluation which was
not consistent with his other activities or the objective
findings in the record. The ALJ also noted that Samson based
his results on Blakley’s own reports of pain, rather than on
objective assessments, that he did not factor into the opinion
the inappropriate “Waddell” signs,7 and that he is not an
acceptable medical source under the regulations.
Although Blakley disputes the ALJ’s reasons, the record
supports them. Samson found mostly normal results during his
physical examination but then found Blakley had very low
functional ability based on Blakley’s performance. To the
extent Blakley’s functioning was impaired by balance problems,
there is no evidence that his balance was affected by either
degenerative disc disease or chronic pain syndrome. Dr.
Thompson, whose opinion the ALJ gave great weight and which
7 According to Samson, Blakley scored 2/5 on the Waddell’s
Inappropriate Symptom Questionnaire, which was indicative of
inappropriate complaints. Samson stated in a 2016 supplemental
report that despite this score, Blakley’s reports of pain and
disability in March 2014 were fully reliable.
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Blakley does not challenge, suggested that some of Blakley’s
functioning problems could be due to side effects from
medications.
In summary, the ALJ considered the occupational therapist’s
opinion and explained why she gave it little weight. Her
reasons are supported by the record. That is all that is
necessary.
II. Prior Decision
Blakley also faults the ALJ for failing to consider the
more restrictive residual functional capacity assessment done by
another ALJ in the prior decision, which found that Blakley was
limited to sedentary work. After Blakley sought judicial
review, that decision was remanded to the Appeals Council which
then directed that another ALJ review the case, hold another
hearing, and issue a new decision, specifically addressing
certain issues.
Blakley cites Lord v. Apfel, 114 F. Supp. 2d 3, 15-16
(D.N.H. 2000), in support of his argument that the ALJ was
required to consider the residual functional capacity assessment
done in the prior decision. Blakley is mistaken. The cited
part of the decision in Lord addresses a medical opinion by
Lord’s treating physician, not a decision or a residual
functional capacity assessment by an ALJ in a prior proceeding.
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Therefore, Lord provides no support for Blakley’s theory that
the ALJ in this case was required to discuss the decision from a
prior proceeding or the residual functional capacity assessment
used in that decision, and the court perceives no error.
CONCLUSION
For the foregoing reasons, the claimant’s motion to reverse
(document no. 9) is denied. The Commissioner’s motion to affirm
(document no. 13) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Landya B. McCafferty
United States District Judge
September 25, 2019
cc: Counsel of Record
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