Pratt v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rebecca Pratt
v. Civil No. 18-cv-966-LM
Opinion No. 2020 DNH 030
Andrew Saul1, Commissioner,
U.S. Social Security
Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Rebecca Pratt seeks
judicial review of the decision of the Commissioner of the
Social Security Administration denying her application for
disability insurance benefits. Pratt moves to reverse the
Commissioner’s decision, contending that the Administrative Law
Judge (“ALJ”) erred by assigning improper weight to the medical
opinions in the record, improperly evaluating Pratt’s subjective
descriptions of her symptoms, and providing an incomplete
hypothetical to the vocational expert. The Administration moves
to affirm the Commissioner’s decision. For the reasons
discussed below, the decision of the Commissioner is affirmed.
1 On June 17, 2019, Andrew Saul was sworn in as Commissioner
of Social Security. Pursuant to Fed. R. Civ. P. 25(d), he
automatically replaces the nominal defendant, Nancy A. Berryhill,
who had been Acting Commissioner of Social Security.
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STANDARD OF REVIEW
In reviewing the final decision of the Commissioner under
Section 405(g), 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 as
long as they are supported by substantial evidence. 42 U.S.C.
§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir.
2016). “Substantial-evidence review is more deferential than it
might sound to the lay ear: though certainly ‘more than a
scintilla’ of evidence is required to meet the benchmark, a
preponderance of evidence is not.” Purdy v. Berryhill, 887 F.3d
7, 13 (1st Cir. 2018) (citation omitted). Rather, the court
“must uphold the Commissioner’s findings if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support her conclusion.” Id. (citation, internal
modifications omitted).
DISABILITY ANALYSIS FRAMEWORK
To establish disability for purposes of the Social Security
Act, a claimant must demonstrate an "inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
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. . . to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has
established a five-step sequential process for determining
whether a claimant has made the requisite demonstration. 20
C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S.
137, 140 (1987). The claimant “has the burden of production and
proof at the first four steps of the process.” Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three
steps are: (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether she has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment. 20 C.F.R. §
404.1520(a)(4)(i)-(iii).
If the claimant meets her burden at the first three steps
of the sequential analysis, an 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 the
limitations caused by her impairments. Id. §§ 404.1520(e),
1545(a)(1). At the fourth step of the sequential analysis, the
ALJ considers the claimant’s RFC in light of her past relevant
work. Id. § 404.1520(a)(4)(iv). If the claimant can perform
her past relevant work, the ALJ will find that the claimant is
not disabled. See id. If the claimant cannot perform her past
relevant work, the ALJ proceeds to the fifth step, at which it
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is the Administration’s burden to show that jobs exist in the
economy which the claimant can do in light of her RFC. See id.
§ 404.1520(a)(4)(v).
BACKGROUND
A detailed recital of the factual background can be found
in Pratt’s statement of facts (doc. no. 7-2) as supplemented by
the Commissioner’s statement of facts (doc. no. 9). The court
provides a brief summary of the case here.
Pratt filed an application for disability insurance
benefits on October 12, 2016, initially alleging a disability
onset date of November 7, 2011. Pratt alleged that she was
disabled due to depression, anxiety, and fibromyalgia. Her last
insured date was June 30, 2014.
After the Administration denied Pratt’s application, Pratt
requested a hearing before an ALJ. The ALJ held a hearing on
November 7, 2017, at which Pratt amended her alleged disability
onset date to June 30, 2014, the same date as her date last
insured. Consulting physician Dr. John Pella testified at the
hearing. Because medical records relating to Pratt’s
psychological condition had not been provided to the consulting
psychologist scheduled to testify that day, the ALJ continued
the hearing.
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The ALJ held a second hearing on March 29, 2018. Pratt
testified at the second hearing, as did consulting psychologist
Dr. Richard Anderson and impartial vocational expert Whitney J.
Eng.
The ALJ issued an unfavorable decision on April 18, 2018.
He found that Pratt had a combination of severe impairments
consisting of depression, dysthymia, and fibromyalgia. The ALJ
did not find that Pratt had medically determinable impairments
due to symptoms of anxiety.
In addition, the ALJ found that Pratt had the residual
functional capacity to perform light work as defined at 20
C.F.R. § 404.1567(b), except that she was limited to simple,
routine tasks. Admin. Rec. at 16. The ALJ further found that
Pratt could not tolerate exposure to extreme temperatures or to
dust, odor, fumes, or respiratory irritants. Id. In assessing
Pratt’s RFC, the ALJ found that Pratt’s testimony regarding the
intensity, persistence, and limiting effects of her reported
symptoms was not consistent with the medical evidence of record.
The ALJ relied on the testimony of Drs. Pella and Anderson and
gave little weight to the medical opinion of treating physician
Dr. Girish Joshi.
In response to hypothetical questions posed by the ALJ,
Eng, the impartial vocational expert, testified to her opinion
that a person with Pratt’s age, education, past work experience,
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and RFC could perform the job duties of a retail marker, a
cleaner/housekeeper, and a café attendant. Based on this
testimony, the ALJ found at Step Five of the sequential process
that Pratt was not disabled for purposes of the Social Security
Act.
On September 6, 2018, the Appeals Council denied Pratt’s
request for review. In consequence, the ALJ’s decision became
the Administration’s final order for purposes of judicial
review. 20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel,
530 U.S. 103, 107 (2000). This action followed.
DISCUSSION
Pratt raises three broad claims of error on appeal. She
argues that the ALJ erred in: (1) weighing the medical opinions
in the record; (2) evaluating Pratt’s subjective complaints; and
(3) posing hypothetical questions to the vocational expert. The
court addresses each argument below.
I. Medical Opinions
Pratt contends that the ALJ erred in weighing the medical
opinions in the record. Specifically, Pratt argues that the
ALJ: (1) erroneously afforded relatively lower weight to
treating physician Dr. Joshi’s opinion than to that of
consulting physician Dr. Pella and erroneously adopted a portion
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of Dr. Pella’s opinion; and (2) erroneously failed to consider a
portion of consulting psychologist Dr. Anderson’s opinion.
“An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record.” Ledoux v.
Acting Comm’r, Soc. Sec. Admin., Case No. 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018). “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).
The ALJ analyzes the opinions of state agency consultants,
treating sources, and examining sources under the same rubric.
See id.; 20 C.F.R. § 404.1527(c). The ALJ must consider “the
examining relationship, treatment relationship (including length
of the treatment relationship, frequency of examination, and
nature and extent of the treatment relationship), supportability
of the opinion by evidence in the record, [and] consistency with
the medical opinions of other physicians,” along with the
doctor’s expertise in the area and any other relevant factors.
Johnson v. Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5
(D.N.H. Oct. 12, 2017).
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A. Drs. Joshi and Pella
Dr. Joshi began treating Pratt in June 2014. Admin. Rec.
at 43, 596. However, the records of Pratt’s consultations with
Dr. Joshi from June 2014 through May 2015 were lost and were not
available for the Administration’s review in connection with
Pratt’s application for benefits. Id. at 68, 394. The first
available record of those consultations dates from June 22,
2015, when Pratt presented for treatment in connection with
hives and depression. Id. at 398.
In October 2017, Dr. Joshi filled out a form provided to
him by Pratt’s counsel. Id. at 801-805. By checking boxes on
the form, Dr. Joshi expressed his opinion that Pratt was unable
to stand for more than five minutes without needing to sit or
move, that she could sit and stand or walk for less than two
hours in an eight-hour work day, and that she could walk less
than a city block without rest. Dr. Joshi opined that Pratt
could rarely lift three pounds, rarely look up, rarely hold her
head in a static position, and only occasionally turn her head
to the left or right. Dr. Joshi opined that Pratt could
occasionally twist her body, rarely stoop or bend, and never
crouch or climb. Dr. Joshi checked a box on the form indicating
his opinion that Pratt’s impairments had “existed since the
claimant’s alleged onset date of 6/30/2014.” Id. at 801.
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Dr. Joshi’s progress notes from Pratt’s June 22, 2015,
consultation (the earliest in the record) do not indicate that
Pratt reported any pain-related symptoms at that time. Id. at
398-400. His progress notes from June 29, 2015, through
December 21, 2017 (the most recent in the record) do indicate,
however, that over that 30-month period Pratt periodically
reported pain symptoms, and that over that time she reported
such symptoms with progressively increasing frequency and
severity. Id. at 286-397, 861-906. The earliest indication in
Dr. Joshi’s notes that he believed Pratt might suffer from
fibromyalgia occurred on October 28, 2015. Id. at 367.
Notwithstanding Dr. Joshi’s medical opinion of October
2017, his contemporaneously maintained progress notes contain no
suggestion prior to 2017 of any impairment in Pratt’s ability to
walk, sit, stand, move her neck, or otherwise move her body.
Id. at 286-400. Indeed, throughout the period from June 22,
2015, through December 6, 2017, Dr. Joshi repeatedly recorded
his affirmative impressions that Pratt’s gait was “normal”
and/or that she had normal motor strength in all of her
extremities, including her legs, id. at 287, 293, 297, 309, 313,
322, 333, 340, 347, 356, 360, 871, 877, 881, 886, 897, 901, 922,
and that she had the “full range of movement” in her neck and/or
that her neck was “supple,” id. at 286, 293, 296, 309, 321, 333,
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340, 347, 356, 359, 371, 374, 379, 382, 385, 388, 392, 396, 877,
881, 885, 897, 922.
Following review of all available medical records bearing
on Pratt’s claimed physical impairments, consulting physician
Dr. Pella opined that the records were not sufficiently complete
to support any conclusion regarding Pratt’s RFC as of her date
last insured of June 30, 2014, which was also her alleged
disability onset date. Id. at 71-72. Dr. Pella noted that
there were no available medical records of Pratt’s physical
condition between approximately 2009 and her date last insured,
and that the available records from 2009 and earlier did not
suggest the existence of potentially disabling impairments. Id.
Dr. Pella further noted that the available records from June
2015 and later likewise did not suggest the existence of
potentially disabling impairments as of June 2014. Id.
Asked to assume that Pratt suffered from fibromyalgia as of
her date last insured, Dr. Pella opined arguendo that on or
before June 30, 2014, Pratt would have been capable of
performing work at the light exertional level. Id. at 72-74.
In support of his opinion, Dr. Pella noted Pratt’s reported pain
symptoms began becoming significant in or around October 2015.
Id. He further noted that Pratt’s prescriptions for pain
medication suggested that her pain symptoms increased in
severity over time, further suggesting that they were less
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severe prior to the date Dr. Joshi’s available records begin.
Id.
When asked whether Pratt’s pain symptoms might interfere
with her ability to stay on task, Dr. Pella declined to answer
the question, noting that any recently reported impairment in
her ability to concentrate could as easily be caused by her
recent regimen of prescribed opioid medications as by her pain
symptoms. Id. at 74. Dr. Pella further noted that Pratt had
recently been diagnosed with respiratory problems, apparently
due to having been a cigarette smoker. Id. at 74-76. In light
of those problems, Dr. Pella opined that Pratt should be
limited—apparently currently rather than as of her date last
insured—to occasional exposure to irritants, dust, odors, fumes,
respiratory irritants, and extremes of temperature. Id.
Pratt contends that the ALJ erred in giving greater weight
to Dr. Pella’s opinion than to Dr. Joshi’s opinion regarding her
physical limitations. She further assigns error to the ALJ’s
adoption of Dr. Pella’s opinion that, as of her date last
insured, Pratt could have been capable of performing work at the
light exertional level.
“[T]reating physicians' opinions are ordinarily accorded
deference in Social Security disability proceeding.” Richards
v. Hewlett–Packard Corp., 592 F.3d 232, 240 n. 9 (1st Cir.2010).
This is because “these sources are likely to be the medical
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professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.” 20 C.F.R. §
416.927(c)(2). A treating-source opinion is entitled to
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
claimant’s] case record.” 20 C.F.R. § 416.927(c)(2).
If, however, the treating-source opinion conflicts with
other opinions in the record, the ALJ “may reject the opinion of
the treating physician so long as an explanation is provided and
the contrary finding is supported by substantial evidence.”
Tetreault v. Astrue, 865 F. Supp. 2d 116, 125 (D. Mass. 2012)
(internal quotation marks, citation omitted).2 Moreover, where a
consulting physician’s opinion is more consistent with the
medical evidence of record than the opinion of a treating
physician, an ALJ may appropriately afford the consulting
physician’s opinion greater weight than that of the treating
2 An ALJ must give “good reasons” for rejecting a treating
source’s opinion. 20 C.F.R. § 416.927(c)(2); see also Polanco–
Quinones v. Astrue, 477 Fed. Appx. 745, 746 (1st Cir. 2012)
(unpublished disposition).
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physician. Berrios Lopez v. Sec'y of Health & Human Servs., 951
F.2d 427, 431 (1st Cir. 1991); Margarita Aleksandrov
Sokolovskaya v. Colvin, 187 F. Supp. 3d 324, 334 (D. Mass.
2016). Finally, where a consulting physician’s opinion
regarding a claimant’s RFC is grounded in medical evidence, the
consulting physician’s opinion constitutes substantial evidence
upon which an ALJ may properly rely in making an RFC assessment.
Rodriguez v. Sec'y of Health & Human Servs., 893 F.2d 401, 403
(1st Cir. 1989).
Here, the ALJ explained that he afforded little relative
weight to Dr. Joshi’s opinion regarding the limitations
affecting Pratt’s ability to work as of her date last insured
because they were not consistent with the available medical
evidence. Admin. Rec. at 18. The ALJ specifically noted that
Dr. Joshi’s opinion was not grounded in contemporaneous records
of Pratt’s physical condition as of her date last insured, and
that the available records did not reflect any of the
limitations Dr. Joshi ascribed to Pratt even at much later
dates. Id. The ALJ further noted that Dr. Pella’s assessment
of Pratt’s physical RFC was consistent with the available
records. Id.
Pratt has not shown that the ALJ erred either in affording
relatively greater weight to Dr. Pella’s opinion than to Dr.
Joshi’s or in relying on Dr. Pella’s opinion as substantial
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evidence supporting his assessment of Pratt’s RFC. To the
contrary, the ALJ provided specific, legitimate, and convincing
grounds for his conclusions that Dr. Joshi’s opinion was
inconsistent with available medical evidence and that Dr.
Pella’s opinion was consistent with the evidence. It follows
that the ALJ deployed the proper legal standards and based his
conclusions on substantial medical evidence of record. No
grounds therefore exist for disturbing the Commissioner’s final
decision based on the ALJ’s determinations regarding the
credibility and relative weight of Drs. Joshi and Pella’s
opinions.
B. Dr. Anderson
Following review of all available medical records bearing
on Pratt’s claimed physical impairments, consulting psychologist
Dr. Anderson opined that, as of her date last insured, Pratt
would have had mild impairments in interacting with others, and
moderate limitations in concentration, persistence, and pace and
in adapting and managing herself. Admin. Rec. at 32-33. Dr.
Anderson expressly declined to quantify those impairments in
terms of functional limitations on Pratt’s ability to work. Id.
at 33, 34. However, in response to a question posed by the ALJ,
Dr. Anderson expressed doubt that Pratt’s impairments would have
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been sufficiently severe to limit her to only simple, routine
tasks. Id. at 33.
On the basis of Dr. Anderson’s refusal to quantify Pratt’s
mental impairments in terms of functional limitations, Pratt now
assigns error to the ALJ’s inclusion of a limitation to simple,
routine tasks in his assessment of Pratt’s RFC. However, it is
difficult to understand how the ALJ’s inclusion in Pratt’s RFC
of a greater limitation than that clearly supported by the
medical evidence could have caused her any harm. It is the
claimant’s burden to show that an ALJ’s purported error resulted
in prejudice to her, Shinseki v. Sanders, 556 U.S. 396, 409
(2009), and here Pratt has not made any attempt to meet that
burden. Indeed, nothing in the record suggests any possibility
that Pratt could have been found disabled had the ALJ not
assessed her RFC as containing the limitation to simple, routine
tasks. The ALJ’s inclusion of that limitation in his assessment
of Pratt’s RFC therefore provides no ground for disturbing the
Commissioner’s final decision. See, e.g., Ward v. Comm'r of
Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000).
II. Pratt’s Subjective Complaints
At the second hearing before the ALJ, Pratt testified
regarding her physical and psychological condition. Admin. Rec.
at 45-55. Specifically, she testified that in 2009 she began
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experiencing anxiety and panic attacks, and that from 2014
onwards she rarely left her home due to anxiety, depression, and
symptoms of pain. Id. She further testified that her symptoms
included fatigue, inability to sustain mental or physical
activity, inability to concentrate, disturbed sleep, anxiety,
panic attacks, depression, anger, suicidal thoughts, restless
leg syndrome, hives, fibromyalgia, and high blood pressure. Id.
Pratt now argues that the ALJ improperly discredited her
subjective testimony. Notably, she does not offer any argument
that had the ALJ fully credited her testimony, he would have
assessed her RFC any differently. Nevertheless, she assigns
error to the ALJ’s finding that her statements concerning the
intensity, persistence, and limiting effects of her symptoms
were “inconsistent because there is very little medical evidence
documented in the record prior to the expiration of insured
status that supports her allegations.” Id. at 17. Pratt
contends that the ALJ’s finding was erroneous because the ALJ
failed to consider her explanation for the absence of medical
records.
At the second hearing, Pratt offered testimony regarding a
gap in her medical records from approximately 2009 through 2015.
Pratt explained that although she had begun consulting with Dr.
Joshi in June 2014, he subsequently moved offices, resulting in
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the loss of all records of her consultations with him between
June 2014 and June 2015. Id. at 42-45.
Nothing in the ALJ’s opinion suggests that he disregarded
Pratt’s explanation for the missing records. Because the gap in
records of treatment for Pratt’s symptoms extended from 2009 to
2015, and because Pratt’s explanation addressed only the absence
of records from June 2014 (the month of her date last insured)
through May 2015, the absence of medical records suggests that
Pratt did not consistently seek medical treatment for her
allegedly disabling conditions prior to her date last insured,
notwithstanding her proffered explanation for the lost records.
Moreover, the gap in Pratt’s medical records is not the
sole explanation the ALJ offered for his finding regarding
Pratt’s testimony. The ALJ additionally found that the
chronologically “remote” medical evidence of record was
inconsistent with Pratt’s subjective testimony. Id. at 18.
Specifically, the ALJ noted the absence of clinical findings
that Pratt suffered from acute distress at any time prior to her
date last insured, and further noted that Pratt’s mental status
exams of record were generally unremarkable. Id.
The court agrees with Pratt that the ALJ was required to
consider her subjective testimony regarding the intensity,
persistence, and limiting effects of her symptoms in assessing
her RFC. Coskery v. Berryhill, 892 F.3d 1, 4 (1st Cir. 2018);
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see also 20 C.F.R. § 404.1529(c)(3); S.S.R. 16-3p. The record
establishes that the ALJ fully complied with his obligation to
do so. Admin. Rec. at 17-18. The ALJ’s findings regarding the
credibility of Pratt’s subjective testimony therefore provide no
ground for disturbing the Commissioner’s final decision.
III. Hypothetical Questions Posed to the Vocational Expert
At the second hearing, the ALJ asked Eng, the vocational
expert, whether jobs existed in the national economy which could
be performed by a person with Pratt’s age, education, past work
experience, and RFC. In his hypothetical questions, the ALJ
characterized Pratt’s RFC as limiting her to the light
exertional level, to simple and routine tasks, and to never
being exposed “to dust, odors and fumes, or extreme cold or
extreme heat.” Admin. Rec. at 56-57. Noting that the ALJ
assessed Pratt’s RFC as containing a limitation prohibiting
exposure to “dust, odor, fumes, or respiratory irritants,” id.
at 16 (emphasis supplied), Pratt now assigns error to the ALJ’s
failure to include “respiratory irritants” in the hypotheticals
he posed to Eng. Pratt argues that the purported error was not
harmless because the evidence of record does not “clarify the
impact of this additional limitation” on the availability of
jobs Pratt was capable of performing.
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Pratt’s argument is not persuasive. The court acknowledges
that “in order for a vocational expert's answer to a hypothetical
question to be relevant, the inputs into that hypothetical must
correspond to conclusions that are supported by the outputs from
the medical authorities.” Arocho v. Sec'y of Health & Human
Servs., 670 F.2d 374, 375 (1st Cir. 1982). Here, the ALJ
included a limitation prohibiting exposure to the respiratory
irritants “dust, odor, and fumes” in his hypothetical questions,
effectively incorporating the assessed limitation. Moreover,
nothing in the Dictionary of Occupational Titles’ entries for the
occupations of retail marker, cleaner/housekeeper, or café
attendant suggests that the duties of those positions require an
ability to tolerate exposure to respiratory irritants in general.
D.O.T. 209.587-034; D.O.T. 311.677-010; D.O.T. 323.687-014. Even
if the failure to include the phrase “respiratory irritants” in
the hypothetical questions were deemed erroneous, such error
would therefore necessarily have been harmless. See, e.g.,
Dixson v. Colvin, Case No. 2:13-CV-165-GZS, 2014 WL 1569530, at
*5 (D. Me. Apr. 18, 2014); see also Ward, 211 F.3d at 656.
CONCLUSION
For the foregoing reasons, Pratt’s motion to reverse (doc.
no. 7) is denied, and the Commissioner’s motion to affirm (doc.
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no. 8) is granted. The clerk of the court shall enter judgment
in accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 3, 2020
cc: Counsel of Record
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