Fitts v. Kijakazi

691 F.Supp.3d 390

2023 DNH 114

Barbara FITTS v. Kilolo KIJAKAZI, Acting Commissioner of Social Security

Civil No. 22-cv-559-LM

United States District Court, D. New Hampshire

Signed September 12, 2023

Ruth Dorothea Heintz, NH Legal Assistance, Claremont, NH, for Barbara Fitts.

Daniel S. Tarabelli, Michael L. Henry, Social Security Administration Office of the General Counsel, Baltimore, MD, for Commissioner US Social Security Administration.

ORDER

Landya McCafferty, United States District Judge

Plaintiff Barbara Fitts brought this action seeking judicial review of the decision of the Acting Commissioner of the Social Security Administration denying her applications for disability insurance benefits and supplemental social security income under Titles II and XVI of the Social Security Act. Fitts moves to reverse the Acting Commissioner's decision (doc. no. 5), and the Acting Commissioner moves to affirm (doc. no. 7). Fitts argues that the Administrative Law Judge ("ALJ") erred by concluding that Fitts retains a residual functional capacity ("RFC") to perform light work with some additional limitations. Fitts argues that the ALJ erred by constructing an RFC without support from an expert medical opinion; by failing to give proper weight to the opinion of a treating physician; and by discounting Fitts's statements about the intensity, persistence, and limiting effects of her symptoms.

The court agrees with Fitts that the ALJ erred by improperly weighing the opinions of her treating medical provider and by constructing an RFC without substantial evidence and, in particular, without support from a medical opinion. The Acting Commissioner's decision is vacated and the matter is remanded to the Acting Commissioner for further proceedings consistent with this order.

STANDARD OF REVIEW

In reviewing the final decision of the Commissioner under 42 U.S.C. § 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 Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court defers to the ALJ's factual findings if 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 [Acting] 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 and internal modifications omitted).

DISABILITY ANALYSIS FRAMEWORK

The Social Security Administration's regulations set out a five-step process that ALJs must follow to evaluate whether a person is "disabled" under the Social Security Act—that is, unable to engage in any "substantial gainful activity." See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1520.¹ The five steps are as follows:

• Step One: If the claimant is presently engaging in substantial gainful activity, she is not disabled. § 404.1520(b).

• Step Two: If the claimant does not have any impairment or any combination of impairments that significantly limits her physical or mental ability to do basic work activities, she is not disabled because she lacks a "severe" impairment. § 404.1520(c).

• Step Three: If any of the claimant's impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled—and the ALJ need not proceed to steps four and five. § 404.1520(d).

• Step Four: If the claimant's impairments do not prevent her from doing her past relevant work, then she is not disabled. § 404.1520(e)-(f).

• Step Five: If the claimant's impairments do not prevent her from doing other work that exists in the national economy, then she is not disabled. § 404.1520(g).

At steps one through four, the claimant has the burden of proof. Sacilowski, 959 F.3d at 433-34. At step five, however, the Commissioner has the burden of proof. Id.

If the claimant meets her burden at the first two steps of the sequential analysis, but not at the third, the ALJ proceeds to steps four and five, which begin with a determination of the claimant's "residual functional capacity," i.e., a determination of what kind of things the claimant can and cannot do, mentally and physically. See 20 C.F.R. § 404.1545(a)(1). A person's RFC is an assessment of "the most" the claimant can do despite her limitations. Id. After the ALJ formulates the claimant's RFC, she compares that assessment against the demands of the claimant's past work (at step four) and against other jobs that exist in the national economy (at step five). § 404.1520(e)-(g). If the claimant's RFC allows her to perform her past relevant work or work that exists in the national economy, the claimant is not disabled. See § 404.1520(a)(4)(iv)-(v), (e), (f).

BACKGROUND

Fitts applied for disability insurance benefits and supplemental security income in September 2020. Fitts claimed a disability beginning August 10, 2020, alleging impairments of vestibular² problems, dizziness, vertigo, and benign paroxysmal positional vertigo. The Social Security Administration denied Fitts's claims, and Fitts requested reconsideration. The Social Security Administration upheld the denial, and Fitts then requested a hearing before an ALJ. The ALJ held a hearing by telephone in December 2021.³

During the hearing, Fitts and a vocational expert testified. In addition to the medical record, the evidence before the ALJ included two opinions from a treating physician, Dr. Sean Wise, and opinions from two state-agency consultants who reviewed the medical record, Drs. James Trice and Ilonna Rimm.

I. Medical Opinions

A. Dr. Wise's Opinions

Dr. Wise provided an opinion in April 2021 and another opinion in October 2021. AR at 435-38 (October 2021 Opinion); id. at 391-92 (April 2021 opinion). Dr. Wise is an assistant professor of surgery in otology and neurotology at the Geisel School of Medicine at Dartmouth-Hitchcock Medical Center. He is a board-certified specialist in otolaryngology⁴ and subspecialist in neurotology.⁵

In his April 2021 opinion, Dr. Wise wrote that Fitts had been in his care at Dartmouth-Hitchcock Medical Center from June 4, 2020, through the then-present date (April 21, 2021). He stated that Fitts has "a history of positional vertigo with presumed benign positional vertigo, with clinical course complicated by maladaptive vestibular compensation congruent with persistent postural perceptual dizziness, with likely additional cervicogenic dizziness trigger." Id. at 392. He stated that Fitts "has undergone an extensive vestibular evaluation," identified some of the tests, and asserted that "[d]espite medication management and continued, aggressive, specialized vestibular therapy through Physical Therapy, [Fitts] has experienced continued baseline disequilibrium with unpredictable episodic dizziness exacerbations lasting hours to days." Id. Dr. Wise described Fitts's symptoms as "fluctuating" and "unpredictable," such that they were "severely limiting, and have variably impacted this patient's inability to maintain activities of daily living, her ability to safely drive a vehicle, and have adversely impacted her capacity to effectively maintain participation at work." Id.

Dr. Wise's second opinion, dated October 22, 2021, is primarily a form opinion with some elaboration offered in the margins. See id. at 438. Dr. Wise stated that Fitts has diagnoses of positional vertigo with benign persistent postural perceptual dizziness complicated by maladaptive vestibular compensation; benign paroxysmal positional vertigo; disequilibrium; bilateral aural fullness; and bilateral tinnitus. He answered "Yes" to a question on the form about whether Fitts had dizziness and added that it was "in addition to the paroxysmal positional vertigo." Id. at 435. He indicated that Fitts had daily dizziness and paroxysmal positional vertigo episodes and that Fitts did not always have warning of impending dizziness. As such, Dr. Wise stated that Fitts cannot always take safety precautions before she feels an episode occur. Dr. Wise stated that Fitts's dizziness did not occur at a particular time of day but that "symptoms can increase/worsen with increased movement. Exacerbations somewhat unpredictable." Id. at 435. "Stress or anxiety of any kind" were precipitating factors. Id. at 436. Symptoms associated with Fitts's dizziness included malaise; photosensitivity; sensitivity to noise; hot flashes; visual disturbances; mood changes; mental confusion/inability to concentrate; fatigue/exhaustion; and sleep disturbances. Id.

In response to questions about the duration and after-effects of "episode[s]," Dr. Wise clarified that the effects of dizziness were "constant" or "not episodic," meaning that "dizziness is a constant with variable intensity with variable associated symptoms, as outlined above." Id. Dr. Wise stated that Fitts was prescribed "Meclizine as needed," but it made Fitts "very sleepy." Id. Dr. Wise stated that Fitts also took Zofran as needed for nausea.

Dr. Wise opined about Fitts's functional impairments, stating that Fitts was "unable to work"; she could not work at heights; could not work with power machines that require an alert operator; could operate a motor vehicle "on occasion"; and could not take a bus alone. Id. at 436-38. Dr. Wise also noted that Fitts had irritability/mood changes; was socially isolated; had a short attention span; and had memory problems.

Dr. Wise elaborated that Fitts was unable to work because she was unable to tolerate hours of working; standing; or turning because of disequilibrium and persistent postural perceptual dizziness. Dr. Wise...