Minahan v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Katherine Minahan
v. Civil No. 19-cv-1083-JD
Opinion No. 2020 DNH 037
Andrew Saul, Commissioner
Social Security Administration
O R D E R
Katherine Minahan seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the Commissioner’s decision that denied her
application for disability insurance benefits under Title II.
In support, she contends that the Administrative Law Judge
(“ALJ”) erred in assessing her residual functional capacity and
made other errors in finding that she was not disabled. The
Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the 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.
§ 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019).
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Substantial evidence is “more than a mere scintilla” and means
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. at 1154. The court must
affirm the ALJ’s findings, even if the record could support a
different conclusion, when “a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support [the ALJ’s] conclusion.” Irlanda Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(internal quotation marks omitted); accord Purdy v. Berryhill,
887 F.3d 7, 13 (1st Cir. 2018).
Background
A. Factual Statements
Under the Local Rules in this district, the plaintiff is
required to file a statement of material facts to accompany her
memorandum of law in support of her motion to reverse the
decision of the Commissioner. LR 9.1(c). In response, the
Commissioner files a motion to affirm the decision, accompanied
by a supporting memorandum of law, and may file a statement of
facts but “only to the extent the government determines material
facts were omitted from the plaintiff’s statement.” LR 9.1(d).
Further, every fact must be supported by a citation to the
administrative record. LR 9.1(c) & (d).
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The Commissioner filed a five-page statement of facts in
support of his memorandum to affirm. Some of the facts merely
repeat facts stated by Minahan, which violates LR 9.1(d). In
addition, the Commissioner states in his memorandum: “the
Commissioner incorporates by reference the facts set forth in
the ALJ’s decision (Tr. 17-27).” Doc. 8-1, at *2. Local Rule
9.1 does not provide for incorporating facts by reference.
Further, the Commissioner may only provide facts that were
omitted by Minahan, which precludes a general incorporation of
facts by reference. Therefore, the court will not consider the
ALJ’s decision as part of the Commissioner’s factual statement.
Counsel is cautioned about using this approach in the future.
B. Summary of Background Information
Katherine Minahan has a high school education and a year of
college. She worked as a credit manager with Datawatch
Corporation until September of 2014. She then worked on a part
time basis as a massage therapist for Ataraxia, LLC. She was
sixty-three years old when she left Datawatch.
Minahan was diagnosed with breast cancer in August of 2015.
As a result, she had a left partial mastectomy, or a lumpectomy,
in September of 2015. She then had radiation therapy for six
weeks, which caused side effects of fatigue, nausea and
vomiting, and loss of appetite.
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In December of 2015, Minahan applied for social security
benefits. As part of her application process, she met with
Benjamin Garber, Ph.D., for a psychological examination. Dr.
Garber found that Minhan had had major depression in reaction to
her medical issues but that condition was remitted. Dr. Garber
found that Minahan could manage activities of daily living and
social functioning and had the ability to understand and
remember short and simple instructions, to concentrate and
complete tasks, and to tolerate stress. Dr. Garber recommended
psychotherapy and outpatient psychopharmacological management.
Minahan has addressed her mental health issues with alternative
methods such as yoga and medication.
Minahan was screened for colon cancer and then underwent
procedures to remove a polyp found in her colon. She has been
diagnosed with osteoporosis and osteoarthritis.
Because of asymmetry in her breast size caused by the
lumpectomy, Minahan states that she experienced pain in her back
and her shoulder from the asymmetry. The Commissioner notes
Minhan’s hearing testimony where she stated that she chose to
have reconstructive surgery because she had problems buying
clothes due to the asymmetry and because she thought she might
have problems with her shoulders in the future. She elected to
have reconstructive surgery to correct breast asymmetry in
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November of 2017. The recuperation post surgery included pain
and limitation of movement in her shoulder.
Minahan continued to work part time as a massage therapist
after her first breast surgery and again after reconstructive
surgery. Her last insured date was June 30, 2017.
A hearing was held on June 14, 2018, on Minahan’s
application for benefits when Minhan testified, and a vocational
expert also testified. A second hearing was held before an ALJ
on October 9, 2018, which included testimony from a medical
expert. Minahan testified at the hearing and was represented by
counsel. Dr. Joseph Gaeta testified as a medical expert, and
Susan Gaudette testified as the vocational expert. The ALJ
issued a decision on October 31, 2018, finding that Minahan was
not disabled from her alleged onset date of September 14, 2015,
through her last insured date of June 30, 2017. The Appeals
Council denied Minahan’s request for review, making the ALJ’s
decision the final decision of the Commissioner.
Discussion
Minahan moves to reverse the decision of the Commissioner,
arguing that the ALJ erred in relying on the medical expert and
in assessing her residual functional capacity. Minahan also
contends that the ALJ erred in failing to consider a closed
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period of disability. The Commissioner moves to affirm,
asserting that substantial evidence supports the decision.
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. § 416.920. The claimant bears
the burden through the first four steps of proving that her
impairments preclude her from working. Purdy, 887 F.3d at 9.
At the fifth step, the Acting Commissioner has the burden of
showing that jobs exist which the claimant can do. Heggarty v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). If no finding of
disability is made at the third step, the ALJ assesses the
claimant’s residual functional capacity before addressing steps
four and five. 20 C.F.R. § 404.1520(e).
A. Residual Functional Capacity
Residual functional capacity is what the claimant “can
still do despite his or her limitations.” Social Security
Ruling 96-8p, 1996 WL 374184, at *2 (July 2, 1996). A residual
functional capacity assessment is a determination of the
claimant’s “ability to meet the physical, mental, sensory, and
other requirements of work.” 20 C.F.R. § 404.1545(a)(4). In
assessing a claimant’s residual functional capacity, an ALJ
considers “only limitations and restrictions attributable to
medically determinable impairments” and cannot consider the
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claimant’s age, size, physique, or weight unless those factors
are related to a medically determinable impairment. SSR 96-8p,
at *2. The claimant is responsible for providing the evidence
that the ALJ uses to make the residual functional capacity
assessment. § 404.1545(a)(3).
In this case, the ALJ found that Minahan has the residual
functional capacity “to perform a full range of work at all
exertional levels” except that she “can never reach overhead
with her right arm.” AR, p. 22. That finding was based on the
opinion of the medical expert, Dr. Gaeta, who found that Minahan
had no limitations except that she was unable to reach overhead
with her right arm, which the ALJ found was supported by
Minahan’s records.
The ALJ noted that after her first surgery in September of
2015, Minahan completed radiation treatment and made a good
recovery. Minahan was able to exercise, drive, shop, and do
housework. Her medical care providers reported that she
appeared to be well and that she said she was feeling well.
Minahan challenges the residual functional capacity
assessment on the grounds that she could not work at all
exertional levels immediately after her breast surgery and that
other concerns related to her breast cancer impaired her ability
to work. She also contends that the ALJ should have limited her
to sedentary work, that he failed to include a limitation for
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being repeatedly off task and absent, that he failed to consider
the impairments caused by breast asymmetry and reduction
surgery, that he failed to properly consider her testimony about
the intensity and persistence of pain, and that he erred in
relying on the medical expert’s opinion that lymphedema was not
an issue. The Commissioner points to evidence in the record
that supports the ALJ’s decision.
1. Opinions of the Impartial Medical Expert – Dr. Gaeta
“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.” 20 C.F.R. § 404.1527(a)(1).1 An ALJ is
required to consider medical opinions along with all other
relevant evidence in a claimant’s record. § 404.1527(b). An
ALJ evaluates medical opinions based on 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
1 Because Minahan’s claim was filed before March 27, 2017,
the version of § 404.1527 before amendment applies here.
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factors including the understanding the source has of the social
security system. § 404.1527(c); see also Prybylski v. Saul,
2019 WL 7568228, at *8 (D.N.H. Dec. 12, 2019).
During the hearing, Minahan’s counsel asked Dr. Gaeta about
Minahan’s post-surgery care and specifically about her own
responsibility to prevent lymphedema. Dr. Gaeta testified that
lymphedema did not usually occur with Minahan’s procedure and
that she did not have a diagnosis of lymphedema. He described
what he thought would be the appropriate treatment for someone
with lymphedema but said that Minahan would not have had to do
anything to treat lymphedema because she did not have it and did
not need to do anything to prevent it. Minahan’s counsel
persisted in asking about post-surgical care, and Dr. Gaeta
explained that the questions were beyond his area of expertise.2
Minahan faults the ALJ for coming “to a conclusion on an
important medical issue in rel[ia]nce upon the testimony of a
medical expert, when the medical expert testifi[ed] that he was
not an expert on that issue.” Doc. 6-1, at *8. Minahan states:
In effect the ALJ, based in large part on the
testimony of an admitted non-expert on the subject
[of] post-surgical preventative care, has ruled that
the [sic] Ms. Minahan should have worked full time as
a ‘bagger’ or some other such nonsensical occupation,
for a woman of her age and residual functional
capacity, rather than devote herself to recovery and
2 Dr. Geata is board certified in internal medicine and
cardiology.
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prevention as ordered by her doctors; all the while
risking lymphedema and other adverse health effects
related to stress.
Id. In her response to the Commissioner’s motion to affirm,
Minahan attempts to analogize her challenge to Dr. Gaeta’s
testimony with the issue addressed in Biestek, 139 S. Ct. 1148,
but neither the issue nor the analysis is analogous to the
circumstances in this case.3
Although far from clear, Minahan appears to interpret the
ALJ’s decision to find that she could have worked full time
immediately following breast surgery in September of 2015 when
she was recovering and receiving treatment.4 She attributes that
presumed finding to Dr. Gaeta’s testimony that she did not need
to do any post-surgery care to prevent lymphedema. She
challenges Dr. Gaeta’s opinion on the ground that Dr. Gaeta said
he was not an expert on post-surgery care and that her course of
3 In Biestek, the plaintiff argued that a vocational
expert’s testimony could not provide substantial evidence to
support the ALJ’s decision because the vocational expert refused
to disclose the supporting data for the testimony. 139 S. Ct.
at 1154. The Supreme Court declined to impose the categorical
rule the plaintiff urged and instead held that whether there is
substantial evidence must be decided under the particular
circumstances on a case-by-case basis. Id. at 1157. Minahan
has not shown that the result there has any relevance to her
challenge to Dr. Gaeta’s testimony in this case.
4 Minahan is not proceeding pro se. She was represented by
counsel during the administrative proceedings and for purposes
of judicial review.
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treatment “presumably helped her to not develop lymphedema or a
relapse of cancer.” Id.
Minahan is mistaken. The ALJ did not make a finding that
she could work full time immediately after her surgery.
Instead, he found that the record evidence did not show that she
was disabled by impairments for a continuous period of twelve
months. Therefore, Minahan’s challenge is based on a
misunderstanding of the decision.
In addition, based on Minahan’s testimony, the treatment
she used to prevent lymphedema was her own creation, based on
her experience as a massage therapist. She did not testify
that the treatment was prescribed by her physicians and did not
cite medical records to show that the treatment was prescribed.5
She also appeared to testify that she did not tell her
physicians that she was doing her own treatment to prevent
lymphedema.
Further, Dr. Gaeta did not say he lacked expertise in
understanding lymphedema. He said post-surgical care was not
his area of expertise. Because Minahan lacks any evidence that
she had lymphedema or that her physicians prescribed the
5 In her response to the Commissioner’s motion to affirm,
Minahan provides citations to articles on the internet about
lymphedema. She does not provide any citation to the record,
however, to show that her own physicians diagnosed lymphedema or
prescribed a treatment to prevent it.
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treatments she used to prevent lymphedema, Dr. Gaeta’s opinion
is unchallenged, and the ALJ properly relied on it. Minahan’s
argument lacks merit.
2. Subjective Statements
In assessing residual functional capacity, an ALJ must
consider a claimant’s statements about her symptoms and pain in
addition to the objective medical evidence and other evidence in
the record. Coskerly v. Berryhill, 892 F.3d 1, 4 (1st Cir.
2018) (discussing SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016)).
To evaluate the limiting effects of a claimant’s symptoms and
pain, the ALJ first determines whether the claimant had a
medically determinable impairment that could be reasonably
expected to produce the alleged symptoms. SSR 16-3p, at *3.6 If
that is found, the ALJ evaluates the intensity and persistence
of the claimant’s symptoms and determines the extent they limit
the claimant’s ability to do work-related activities. Id. at
*4. The ALJ considers the objective medical evidence in making
that evaluation but will not disregard a claimant’s statements
based only on inconsistency with objective medical evidence and
instead will also consider statements from the claimant, medical
6 Because the ALJ issued his decision after March 16, 2016,
SSR 16-3p applies in this case. Minahan cites the superseded
SSR in her memorandum.
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sources, and others who might have information about her
symptoms. Id. at *5.
The ALJ in this case found that Minahan had “chronic right
shoulder dysfunction, secondary to breast cancer treatment.”
AR, p. 18. That finding was based on Dr. Gaeta’s testimony.
The ALJ found that other impairments were not severe based on
Minahan’s testimony, the reports of her medical care providers
in the record, Dr. Gaeta’s testimony, and objective medical
evidence. He also found that depression was not a severe
impairment based on Dr. Garber’s examination and functional
report.
Minahan contends that the ALJ failed to look at her
impairments in combination and, in particular, failed to
consider the effects of her demanding self-care regimen on her
ability to work.7 She states that much of her self care was
focused on preventing lymphedema. As is explained above,
whatever Minahan’s self-care regimen entailed, she has not shown
that her treatment was prescribed by any medical source. She
provides no evidence, other than her own opinions, that her
self-care regimen was necessary. Dr. Gaeta testified that it
7 In essence, Minahan argues that she was disabled not
because of physical or mental impairments that prevented her
from working but instead because she did a self-care regimen
that she imposed on herself.
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was not necessary. The ALJ properly considered and evaluated
her physical impairments.
Minahan also faults the ALJ for failing to find a severe
impairment due to depression, relying on her own reports of self
care for depression. She states: “[T]here is no question that
Ms. Minahan has suffered from major depression.” In support,
she cites page 384 of the Administrative Record which is a page
in Dr. Garber’s report that says nothing about depression.
Later in the report, on page 386, Dr. Garber noted that Minahan
had had major depression in reaction to her medical status but
that her depression was in remission. Dr. Garber found no
limitations in Minahan’s functional capacity based on depression
or on any other mental impairment. Dr. Craig Stenslie, a state
agency consultant psychologist, also found no significant
functional impairments caused by depression. Therefore, the
ALJ’s finding that depression was not a severe impairment is
supported by substantial evidence in the record.
3. Sedentary Work
Minahan argues that the ALJ should have limited her to
sedentary work which would have resulted in a finding that she
was disabled under the Medical-Vocational Guidelines. In
support, Minahan contends that she could only do sedentary work
because that was the nature of the work she had done previously
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and because it was necessary to prevent lymphedema. She cites
no medical evidence or opinion that shows she was limited to
sedentary work. Minahan, therefore, has not shown the ALJ erred
in failing to impose that limitation.
4. Off Task and Absences
The vocational expert testified that all of the jobs she
had cited would be eliminated if the worker would be off task
for fifteen percent of the day because of fatigue or if the
worker could not complete an eight-hour work day. She also
testified that an average of two absences per month would
eliminate the jobs she had listed. Minahan argues that the ALJ
erred in finding her not disabled in light of that testimony.
In support, Minahan states: “Even a cursory review of the
voluminous medical record would suggest that [she] would be off
pace due to fatigue and miss significant time out of work due to
medical care.” Doc. 6-1, at *4.
As explained by the ALJ, the medical record actually shows
that after her initial surgery and treatment, Minahan recovered
well. Minahan provides no evidence that she would likely have
been off task or would have required frequent absences after
that time. Therefore, Minahan has not shown an error based on
the vocational expert’s testimony.
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5. Pain Due to Asymmetry
Minahan contends that the ALJ erred in concluding that
evidence of her second breast surgery, to correct asymmetry, was
not relevant because it occurred after her last insured date.
She argues that the ALJ should have considered the disabling
effects of pain that she experienced because of asymmetry before
her last insured date. The testimony she cites, however, does
not support her claim.
In her cited testimony, Minahan describes difficulty
finding clothing. She also testified that she had
reconstructive surgery because of a possibility that her
“shoulder alignment was off and I got down the line [sic] I
might have some problems so it was the best avenue to go because
I was doing stretches to align myself all the time because of
the weight and the way I carried myself so I decided to do that
to ward off any possible shoulder issues down the line.” AR,
pp. 49-50. She testified later that she had had “[s]ome
discomfort” when she worked. None of the cited testimony
suggests disabling pain.
Substantial evidence in the record supports the ALJ’s
residual functional capacity assessment.
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B. Closed Period of Disability
Minahan argues that the ALJ erred in not finding her
disabled during a closed period. A closed period of disability
occurs when a claimant is found to be disabled and then, on
review, the Commissioner determines that the claimant has
improved so that she is no longer disabled. 20 C.F.R. §
404.1594; Lagasse v. Berryhill, 2018 WL 1871454, at *2 (D.N.H.
Apr. 18, 2018). To result in a disability finding, an
impairment must be expected to last for a continuous period of
at least twelve months. 20 C.F.R. § 404.1509.
Minahan has not shown that she applied for a closed period
of disability and does not identify what twelve-month period she
believes would qualify as a closed period of disability. She
cites no authority that an ALJ is required to consider and find
a closed period of disability sua sponte. See Roshi v. Comm’r
of Social Security, 2015 WL 6454798, at *15 (D. Mass. Oct. 26,
2015) (declining to hold that an ALJ would have that
responsibility). Further, in the absence of evidence or
developed argument to support a closed period of disability,
Minahan has not carried her burden. See Decker v. Astrue, 2010
WL 4412142, at 4-*5 (D. Me. Oct. 31, 2010).
Therefore, the ALJ did not err in failing to find an
unspecified closed period of disability.
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Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 6) is denied. The Commissioner’s motion to affirm
(document no. 8) is granted. The Commissioner’s decision is
affirmed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 11, 2020
cc: Counsel of Record.
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