Beck v. SSA CV-10-362-JL 9/23/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Linda A . Beck

v. Civil N o . 10-cv-362-JL Opinion N o . 2011 DNH 146 Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the denial of a claimant’s application for Social Security Disability Benefits. See 42 U.S.C. § 405(g). The claimant, Linda Ann Beck, contends that the administrative law judge (“ALJ”) incorrectly found that although Beck suffered from “a single episode of cardiomyopathy with congestive heart failure, deep vein thrombosis and pulmonary embolism in January 2008,” Admin. R. ^[9];1 see 20 C.F.R. §§ 404.1520 (a),(c), she retained the residual functional capacity2 (“RFC”) to perform sedentary work, Admin. R. ^[1] 0 ; see 20 therefore grants Beck’s motion and denies the Commissioner’s motion.

I. APPLICABLE LEGAL STANDARD The court’s review under Section 405(g) 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 3 1 , 35 (1st Cir. 1999); see Simmons v . Astrue, 736 F. Supp. 2d 3 9 1 , 399 (D.N.H. 2010). If the ALJ’s factual findings are supported by substantial evidence in the record, they are conclusive, even if the Court does not agree with the ALJ’s decision and other evidence supports a contrary conclusion. See Tsarelka v . Sec’y of Health & Human Servs., 842 F.2d 529, 535 (1st Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v . Perales, 402 U.S. 389, 401 (1971) (quotations omitted). The ALJ is responsible for determining issues of credibility, resolving conflicting evidence, and drawing inferences from the evidence in the record. See Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981); Pires v . Astrue, 553 F. Supp. 2d 1 5 , 21 (D. Mass. 2008) (“resolution of conflicts in the evidence or questions of credibility is outside the court’s purview, and thus where the record supports more than one outcome, the ALJ’s view prevails”). The ALJ’s findings are not conclusive, however, if they were “derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 3 5 . If the ALJ made a legal or factual error, the decision may be reversed and remanded to consider new, material evidence, or to apply the correct legal standard. Manso-Pizarro v . Sec’y of Health & Human Servs., 76 F.3d 1 5 , 1 6 , 19 (1st Cir. 1996); see 42 U.S.C. § 405(g).

II. BACKGROUND Pursuant to this court’s local rules, see LR 9.1(d), the parties filed a Joint Statement of Material Facts (document n o . 12). This court will briefly recount the key facts and otherwise incorporates the parties’ joint statement by reference. In January 2008, Beck went to the Parkland Medical Center emergency room in Derry, New Hampshire complaining of a persistent cough and shortness of breath. Admin. R. 199. She was treated for pneumonia, id. at 2 0 0 , but returned a few days later after showing no improvement. Again, she was told to continue her treatment for pneumonia. Id. at 209-10. Finally, on January 1 5 , 2008, Beck was admitted to Parkland, where she was diagnosed with congestive heart failure,4 pneumonia, pulmonary embolism,5 deep vein thrombosis,6 cardiomyopathy,7 and arterial masses. Admin. R. 213. Beck, who was by that time in critical condition, was transferred to Brigham & Women’s Hospital in Boston for treatment. Id. 213-14. Beck spent approximately 13 days at Brigham & Women’s Hospital and then was transferred to a cardiac rehabilitation hospital where she remained an additional 13 days. Id. at 332-36, 323. When she entered the rehabilitation facility, Beck was noted to be suffering from severe cardiac and pulmonary conditions and was very weak. Id. at 271. Upon discharge on February 1 3 , 2008, facility staff noted that Beck “looks good” and that her condition was “[i]mproved but guarded.” Id. at 261-62.

Beck filed an application for Disability Insurance Benefits in March 2008 claiming she became disabled in December 2007 due to myriad cardiac issues and blood clots in her lungs and feet. Id. at 4 9 . Her application for benefits was denied in May 2008, see id. at 50-53, because it was determined that although Beck’s condition was severe, her “condition is not expected to remain severe enough for 12 months in a row to keep [Beck] from working.” Id. at 5 0 . Beck appealed that decision to the ALJ, id. at 56-58; see generally 20 C.F.R. § 405.301, who, after a hearing in March 2010, Admin. R. 21-48, concluded that Beck was capable of engaging in sedentary work8 with certain restrictions.^[9] Admin. R. ^[1] 0 ; see generally 20 C.F.R. § 1567(a). The ALJ also determined, based on testimony of a vocational expert, Admin. R. 42-47, that Beck was capable of performing a number of jobs available in the national economy, and was not entitled to benefits. Id. at 1 3 ; see generally 20 C.F.R. § 404.1520(a)(4)(v).

The ALJ’s RFC analysis necessarily required consideration of medical and testimonial evidence regarding the limiting effects of Beck’s cardio-pulmonary problems. See generally, Manso- Pizarro, 76 F.3d at 1 7 . Beck testified that although she had been working steadily for over 30 years, Admin. R. ^[3] 6 , she has experienced profound fatigue since her heart failure. Id. at 3 0 . She also testified that because of the blood clots in her left foot, pain and swelling require her to frequently elevate that foot. Id. at 3 9 . She reported in March 2008 that although lifting was too “strenuous on heart” and standing and walking made her feet swell, she was able to do her laundry, dust, shop, drive her car independently, plant flowers, and visit with friends. Id. at 170-175.

Prior to the hearing, Beck submitted two functional capacity evaluations from her primary cardiologist at Brigham & Women’s Hospital, D r . Benjamin Scirica. Id. at 4 1 2 , 540-43, 546-52; see generally 20 C.F.R. § 404.1527. In his first evaluation dated March 1 6 , 2009, D r . Scirica opined, inter alia, that because Beck suffered from “Class III-IV heart failure [and] pulmonary embolism,”10 she could only sit for a total of four hours each day, stand or walk a total of one hour, and she required a cane to ambulate. Admin. R. 541. He stated that she was extremely limited in her ability to complete a “normal full time workday” or workweek and “[p]erform at a consistent pace.” Id. at 412. He also noted that she would need to repeatedly recline at irregular intervals during a regular workday.^[11] Id. at 412. In December 2009, D r . Scirica completed another functional capacity evaluation concluding that she continued to have the same marked limitations as a result of “[d]econditioning/weakness from heart failure,” pain, and poor balance. Id. at 546-552. He further noted that Beck would “rarely” be able to engage in part-time or full-time employment. Id. at 552.

In contrast, D r . Charles Meader, an non-examining agency consulting physician, completed a functional review in May 2008 offering his opinion on Beck’s expected functional abilities by December 2008. Id. at 398-405. D r . Meader forecast that although Beck would have some postural and environmental limitations, id. at 4 0 0 , 4 0 2 , she would be able to stand/walk at least two hours per eight hour workday and sit at least 6 hours per workday. Id. at 399. He noted that her symptoms related to her medical condition, and that her allegations were credible. He concluded, however, that although she still exhibited severe limitations in May 2008, because she had shown steady improvement during her stay at a cardiac rehabilitation center the prior February, he expected her functional capacity to improve to where she was capable of full-time work by December 2008.12 Id. at 405.

In her order, the ALJ chose to afford only “limited weight” to D r . Scirica’s two functional capacity evaluations and “carefully considered” D r . Meader’s opinion. Id. at 11-12. The AlJ concluded that based on D r . Meader’s opinion that Beck “would be expected to be able to return to work within 12 months of her onset, . . . in combination with D r . Scirica’s report that [Beck] could lift 10 pounds[,]” Beck could perform sedentary work and was not disabled. Id. at 12-15. After the Decision Review Board failed to review the matter in a timely basis, id. at 1 ; see generally, 20 C.F.R. § 405.415, this appeal followed.

III. ANALYSIS A five-step process is used to evaluate an application for social security benefits. ^[20] C.F.R. § 404.1520(a)(4). The applicant bears the burden through the first four steps to show that she is disabled.^[13] Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth step, the Commissioner bears the burden of showing that a claimant has the residual functional capacity to perform other work that may exist in the national economy. Id.; see also 20 C.F.R. § 404.1520(a)(4)(v); Heggarty v . Sullivan, 947 F.2d 9 9 0 , 995 (1st Cir. 1991). The ALJ’s conclusions at steps four and five are informed by his assessment of a claimant’s RFC, which is a description of the kind of work that the claimant is able to perform despite her impairments. 20 C.F.R. §§ 404.1520(a)(4), 404.1545.

A. Treating source opinion Beck asserts that the ALJ failed to properly weigh the medical opinion of her treating physician, D r . Scirica. C l . B r . 4-14. In particular, Beck faults the ALJ for granting only “limited weight” to D r . Scirica’s two functional capacity evaluations.

In her discussion of Beck’s RFC, the ALJ stated that

even as early as June 2008 [Beck’s] medical treatment records indicate that she was becoming more active and even doing some gardening activities. . . . Even as early as May 2008 D r . Scirica noted that [Beck] was doing quite well, was increasing her muscle mass. In September 2008 he noted that [Beck] was able to do her activities of daily living . . . , although she still reported fatigue climbing a flight of stairs. In April 2009 she was able to walk 10-15 minutes with her dogs. Admin. R. ^[11] (citations omitted). The ALJ therefore concluded that “the limitations listed by D r . Scirica in December 2009 appear to be based primarily on subjective complaints. They are distinctly inconsistent with D r . Scirica’s own clinical observations and with the claimant’s lack of reported symptoms or signs of recurrent cardiac events.” Id. Instead, the ALJ “carefully considered” the opinion of D r . Meader, that Beck “would be expected to be able to return to work within 12 months of her onset” and concluded that Beck was capable of engaging in sedentary work. Id. at 11-12.

Beck contends that not only did D r . Scirica’s records support his functional conclusions, but that the ALJ took D r . Scirica’s observations that Beck was “doing quite well” or “looked well” out of context. Beck asserts that D r . Scirica used these terms in the context of her recovery from a very serious cardiac illness, and that D r . Scirica’s notations do not mean that Beck “was capable of engaging in some form of substantial gainful activity.” Cl. Br. ^[8]. Beck argues, therefore, that D r . Scirica’s opinion that she could not work is not “wholly inconsistent” with his clinical records and his opinion should have been given more weight.

In a step four analysis, the ALJ, having already determined that the claimant suffers a severe impairment, makes a determination of the claimant’s current functional capacity, or RFC. If the RFC finding is supported by substantial evidence in the record, it is conclusive. Nguyen, 172 F.3d at 3 5 . Determination of a claimant’s RFC is an administrative decision that is the responsibility of the Commissioner. See 20 C.F.R. § 404.1527(e)(2), SSR 96-5p, 1996 WL 374183, at *2 (July 2 , 1996). An ALJ is prohibited, however, from disregarding relevant medical source opinions. See SSR 96-5p, 1996 WL 374183, at * 5 . Where an ALJ’s RFC assessment is at odds with a medical source opinion, he must explain his reasons for disregarding that opinion. See 20 C.F.R. § 404.1527(d); SSR 96-8p, 1996 WL 374184, at * 7 ; Marshall v . Astrue, N o . 08-cv-147-JD, 2008 WL 5396295, at *3 (D.N.H. Dec. ^[2] 2 , 2008).

A “treating physician’s opinion is generally afforded controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record.” Lopes v . Barnhart, 372 F. Supp. 2d 185, 193-94 (D. Mass. 2005) (quotations and brackets omitted); see generally SSR N o . 96-2p, 1996 WL 374188, at * 1 ; Marshall, 2008 WL 5396295, at * 3 ; 20 C.F.R. § 404.1527(d)(2). “The First Circuit has held . . . that when a treating doctor’s opinion is inconsistent with other substantial evidence in the record, the requirement of controlling weight does not apply.” Rosario v . Apfel, 85 F. Supp. 2d 6 2 , 67 (D. Mass. 2000) (quotations omitted).

An ALJ, however, cannot simply state that treating physician’s functional evaluation is inconsistent with the record, rather, the claimed inconsistencies must be adequately supported by the record as well. See Dietz v . Astrue, N o . 08- 30123-KPN, 2009 WL 1532348, at *7 (D. Mass. May 2 9 , 2009). Thus, the analysis regarding a hearing officer’s choice to give less weight to a treating source opinion centers on two issues. “First, whether the hearing officer had a reasonable explanation for rejecting the opinions of the treating physician[] and, second, whether the hearing officer had substantial evidence to support the . . . contrary finding.” Monroe v . Barnhart, 471 F. Supp. 2d 203, 211-12 (D. Mass. 2007). In this instance, the court concludes that the ALJ’s decision to grant little weight to Dr. Scirica’s functional evaluations was not adequately supported, and therefore her order should be reversed.

1. Functional meaning of “doing well” Beck first argues that the ALJ erred when she determined that D r . Scirica’s RFC evaluations were “distinctly inconsistent” with “his own clinical observations as [sic] where he noted that the claimant could walk [her] dogs even in April 2009 and that she looked well.”14 Id. Beck contends that although there are several notations in D r . Scirica’s treatment notes that Beck was “doing well” or “looked well,” C l . B r . 7 , the ALJ’s interpretation “is problematic” because “[d]oing well within the context of the [claimant’s] medical impairments” does not necessarily mean she was not disabled. Id. at 8 (quotations omitted). She asserts that because the ALJ misinterpreted the meaning of “looked well” or “doing well,” the ALJ’s conclusion that D r . Scirica’s RFC assessment was inconsistent with his treatment notes is flawed and as such the ALJ’s decision should be reversed. The court agrees.

“[T]he phrase ‘doing well’ is relative and should be viewed in the context of the illness a person suffers from.” Brascher v . Astrue, N o . 3:10CV256, 2011 WL 1637029, at *7 (E.D. V a . Mar. ^[1] 1 , 2011). The fact that a patient is found to be “doing well” or that a patient’s condition is “stable,” “does not compel the conclusion that [a] claimant was capable of engaging in substantial gainful activity.” Barriault v . Astrue, N o . 07-cv- 176-SM, 2008 WL 924526, at *7 (D.N.H. Apr. ^[2] , 2008). Such superlative terms do “not shed any light on [a claimant’s] residual functional capacity, nor does it provide any information as to whether [a claimant] was or was not disabled at the time.” Id. For example, a patient who has had a kidney transplant may be “doing well” relative to a prior period of kidney failure, but such observations do “not compel nor support a finding that [a claimant] was not disabled during the period in question.” Fleshman v . Sullivan, 933 F.2d 6 7 4 , 676 (8th Cir. 1991); see, e.g., Hutsell v . Massanari, 259 F.3d 7 0 7 , 712 (8th Cir. 2001) (“doing well” in treatment “has no necessary relation to a clamant’s ability to work or to her work-related functional capacity”). “Therefore, it is not sufficient to focus on the simple phrase of ‘doing well’ while disregarding the remainder of the physician’s report.” Brascher, 2011 WL 1637029, at * 7 . Rather, whether the term “doing well” supports the ALJ’s decision that Beck is not disabled is fact specific and must be determined after a careful review of the context in which the term was used. Compare Morin v . Astrue, N o . 10-cv-159-JL, 2011 WL 2200758, at *8 (June 6, 2011) (clear from the context of the records that the term “stable” meant that condition of claimant diagnosed with multiple sclerosis had not deteriorated and she continued to show high function) with Barriault, 2008 WL 924526, at *7 (fact that cardiac status was “stable” does not compel finding that claimant was not disabled; that observation must be viewed in context to be meaningful).

A review of D r . Scirica’s records reveals that when taken in context, it is clear that “doing well” was not indicative of functional rebirth, but rather referred to the progress of her recovery relative to Beck’s dire medical condition when she first encountered D r . Scirica at Brigham & Women’s Hospital. C f . Brascher, 2011 WL 1637029, at *7 (error where ALJ failed “to take into consideration the entirety of the medical record” and focus only on the “simple phrase” that claimant was “doing well”). Indeed, his positive comments are frequently couched in relative terms, or are subsequently tempered with observations indicating that Beck is in ill health. For example, in February 2008, D r . Scirica noted that Beck “actually looks quite well today, much better than she has in the past.” Admin. R. 373. He further stated that Beck “is doing actually fairly well with a severe cardiomyopathy.” Id. (Emphasis added.) He continues to observe that Beck “could eventually be a transplant candidate,” but is now “in a class III15 heart failure.” Id.

The ALJ specifically cited D r . Scirica’s April 2009 comment that Beck was “doing well” to support her assertion that D r . Scirica’s RFC evaluation was “distinctly inconsistent” with his “own clinical observations” and therefore it was entitled to only limited weight. Id. at 1 1 . A review of that note indicates that indeed D r . Scirica was pleased with Beck’s recovery and that she showed “symptomatic improvement.” Id. at 437. D r . Scirica indicates clearly, however, that she is not functionally capable of working on a sustained basis because he recommends that Beck “should enter cardiac rehabilitation” and that “when she finishes rehabilitation she should hopefully be at a state where she can return to work.” Id. Thus D r . Scirica remains guarded about Beck’s prospects for future work and speaks of her recovery in relative terms. Such notations, when taken in context, are not inconsistent with his March 2009 and December 2009 RFC assessments.^[16]

Other clinical notes follow a similar pattern where D r . Scirica appears pleased with her cardiac progress, but his observations indicate less than full functionality. In September 2008, he noted that Beck “continues to do well with a class II 17 heart failure with a severe nonischemic cardiomyopathy. . . . I have encouraged her to exercise as she can just by starting to walk and increase her activities.” Id. at 439. In December 2009, D r . Scirica indicates that although “[o]ver the last year and a half she has undergone quite impressive recovery of her cardiac status. . . . [Beck] still has been significantly debilitated and weakened from her hospitalization.” Id. at 553. He observed “[s]ince I last saw her, she did complete cardiac rehab, . . . where she did participate in light activities and did have some mild improvement in her exercise capacity, though even in the end she still demonstrated significant debilitation.” Id. Finally, he noted, that

from a cardiovascular standpoint, I think, [Beck] still has made quite a remarkable recovery in terms of the return of her ventricular function and absence of any recurrent thromboembolism. . . . I do think she is severely debilitated and deconditioned and will require a lot more therapy and activities. Currently she cannot do much, but I have asked her to continue to work and try to do as much around the house as she can to build up her exertion. Id. at 554.

In sum, Beck “may be doing as well as can be expected given her case,” Gude v . Sullivan, 956 F.2d 7 9 1 , 794 (8th Cir. 1992), but that fact does not contradict D r . Scirica’s opinion that because Beck continued to struggle with symptoms resulting from her multiple medical issues, she is unable to engage in full-time employment.^[18] C f . id. The ALJ’s decision to grant D r . Scirica’s opinion little weight was neither reasonable nor supported by substantial evidence. The ALJ’s decision is therefore reversed.

2. Factors used to determine weight For purposes of remand, the court notes its concern with the manner in which D r . Scirica’s opinion was considered by the ALJ after she decided not to grant it controlling weight. See 20 C.F.R. § 404.1527(d). “When a treating physician’s opinion is not given controlling weight, the ALJ is next required to determine the appropriate level of weight that it should be Scirica, her cardiologist, who, as noted above, did express concern about Beck’s functionality. C f . 20 C.F.R. §§ 404.1513(a)(1)-(5), 404.1527(a)(2) (nurse practitioners are not “medical sources” and therefore do not generate a “medical opinion” that must be considered by an A L J ) ; Evans v . Barnhart, N o . 02-459-M, 2003 WL 22871698, at *5-*6 (D.N.H. Dec. ^[4] , 2003) (regulations establish a hierarchy of evidence with treating sources given the greatest weight and evidence from nurse- practitioners labeled other evidence that “may” be considered by an A L J ) . These records also do not uniformly support the ALJ’s conclusion that D r . Scirica’s RFC evaluation is not entitled to controlling weight. During one visit to Nurse Johnson, (of three specifically referenced by the A L J ) , Beck did complain of on- going issues with her left foot “where the blood clots were.” Admin. R. ^[11] (ALJ reference), 532. Moreover, records from Nurse Johnson included a letter in which she states that Beck “suffered heart failure that has left her with irreparable heart damage. As such, she cannot lift anything, walk far, and tires easily. . . . She has no stamina . . . . I do not feel that she will ever be able to work again . . . .” Id. at 569.

given.” Lalime, 2009 WL 995575, at * 5 . The regulations counsel that as

a treating source, [Dr. Scirica’s] opinion regarding [Beck’s] RFC was entitled to serious consideration here based on six enumerated factors: (i) the length of [the] treatment relationship and frequency of examination, (ii) the nature and extent of [the] treatment relationship, (iii) supportability, i.e., the adequacy of explanation for his opinions, (iv) consistency with the record as a whole, (v) whether [he] is offering an opinion on a medical issue related to [his] specialty, and (vi) other factors highlighted by [Beck] or others. Dietz, 2009 WL 1532348, at * 7 ; see 20 C.F.R. § 404.1527(d). These “factors are, no doubt, malleable, but ALJs are required to always give good reasons explaining the weight given to a particular physician’s opinion.” Lalime, 2009 WL 995575, at *5 (quotations omitted).

“Adjudicators must remember that a finding that a treating source medical opinion . . . is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.” SSR 96-2p, 1996 WL 374188, at * 4 . Based on the ALJ’s brief (and flawed) discussion of the weight given to D r . Scirica’s opinion, it is not clear that in formulating Beck’s RFC, the ALJ considered that: (i) D r . Scirica was the attending physician at Brigham & Women’s Hospital when she was first admitted there, Admin. R. ^[3] 3 2 , (ii) he continued to provide follow up care for at least 18 months (possibly two years) on a regular basis after she returned to New Hampshire, id. at 553-54, (iii) his apparent specialty is cardiology as follow-up visits were performed in the “Cardiovascular Clinic,” id. at 4 3 7 , and (iv) his office notes were relatively detailed. See, e.g., id. at 372-73. Given the guidance provided by 20 C.F.R. § 404.1527(d), it is difficult to conclude, on this record, that the ALJ’s methodology underlying her decision to afford D r . Scirica’s opinion little weight was valid.

B. Other issues The ALJ’s flawed treatment of D r . Scirica’s opinion offers a sufficient basis for remand. The court need not engage in analysis of Beck’s other complaints before the court as they involve credibility determinations that may vary on remand.^[19] Cf. Lord v . Apfel, 114 F. Supp. 2d 3 , 16 (D.N.H. 2000).