Santana v. Colvin

Filing 29

Judge Indira Talwani: ELECTRONIC ORDER entered. MEMORANDUM AND ORDER. The court ALLOWS Plaintiffs Motion to Reverse and Remand the Decision of the Commissioner 16 and DENIES Defendants motion to Affirm the Commissioners Decision 22 . Plaintiffs application is REMANDED for further proceedings consistent with this opinion.(adminn, )

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MERCEDES SANTANA,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.

*
*
*
*
*
*
*
*
*
*

Civil Action No. 15-cv-13232-IT

MEMORANDUM & ORDER
December 23, 2016
TALWANI, D.J.
I.

Introduction
Plaintiff Mercedes Santana (“Santana”) seeks judicial review of a final decision by the

Commissioner of Social Security Carolyn Colvin (“Commissioner”) denying Santana’s
application for disability insurance benefits and supplemental security income benefits. Motion
to Reverse and Remand the Decision of the Commissioner [hereinafter “Pl.’s Mot.”] [#16]. The
Commissioner has filed a Motion to Affirm the Commissioner’s Decision [hereinafter “Def.’s
Mot.”] [#22]. For the following reasons, Santana’s motion is ALLOWED and the
Commissioner’s motion is DENIED. This matter is REMANDED for further proceedings
consistent with this order.
II.

Background and Procedural History
The Social Security Administration is authorized to pay disability insurance benefits

1

(Title II) and supplemental security income (Title XVI) to persons who have a disability.1 “A
person qualifies as disabled, and thereby eligible for such benefits, ‘only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy.’” Barnhart v. Thomas, 540
U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A)).
Plaintiff Mercedes Santana is a 52 year old woman suffering from “chronic pain and
mental impairments.” Pl.’s Mot. 1. On April 10, 2012, she filed a Title II application for a period
of disability and disability insurance benefits and a Title XVI application for supplemental
security income. (Administrative Record 12, hereinafter “R.”). Both applications were predicated
on an alleged disability beginning on September 2, 1999, and both applications were initially
denied on June 27, 2012, and denied again, upon reconsideration, on November 15, 2012. (R.
12). Upon request for a hearing, Santana appeared and testified on April 1, 2014. (R. 12).
On August 28, 2014, the Administrative Law Judge (“ALJ”) issued an unfavorable
decision. (R. 9-30). The Appeals Council declined to review the decision, rendering it the final
decision of the Commissioner. (R. 1). Santana filed the instant motion on February 23, 2016,
challenging the ALJ’s denial of disability beginning in March of 2009, with the principal
contention of error at the ALJ’s step four determination. [#16].
III.

Standard of Review and Administrative Procedures
An individual may obtain judicial review of the Commissioner’s decision, and the court

For purposes of this Order, there are no material differences between the regulations
promulgated under Title II and Title XVI pertaining to the determination of a “disability.”
Citation throughout will primarily be to regulations promulgated under Title II, i.e. 20
C.F.R. § 404 et seq.
1

2

may affirm, modify or reverse the decision, with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c). A denial of benefits must be upheld, however, “unless the
[Commissioner] has committed a legal or factual error in evaluating a particular claim.” MansoPizarro v. Sec’y Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quotation
marks and citation omitted). In reviewing such denial, the Commissioner’s findings of fact are
conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), and must be upheld
“if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as
adequate to support his conclusion.” Irlanda Ortiz v. Sec’y Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (quoting Rodriquez v. Sec’y Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)).
The Social Security Administration has promulgated regulations establishing a five-step
sequential evaluation process to determine disability. See 20 C.F.R. § 404.1520(a)(4). At step
one, the agency considers work activity, and whether the claimant is doing substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the agency looks to the medical severity of
the impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the agency looks to whether the
impairment meets or equals the list of impairments presumed severe enough to render one
disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 404 Subpt. P,
App. 1. If the impairment does not so qualify, at step four the agency looks to the claimant’s
Residual Functional Capacity, that is, her ability to work despite her impairment, and whether
the claimant can perform her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). The burden
of proof is on the claimant for steps one through four. At the fifth step, the agency considers
vocational factors (age, education and past work experience) to determine whether, given the
claimant’s residual functional capacity, the claimant is capable of performing other jobs existing

3

in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(v); see also Barnhart,
540 U.S. at 24-25. It is the government’s burden to prove that there are sufficient jobs in the
economy that the claimant can perform. Tavarez v. Comm’r of Social Security, 138 Fed. Appx.
327, 329 (1st Cir. 2005) (per curiam).
IV.

The ALJ Decision
Proceeding along the five-step sequential determination of Santana’s disability, the ALJ

made the following findings of fact and conclusions of law.
At step one, the ALJ opined that Santana “may” have engaged in disqualifying
substantial gainful activity, but he did not determine that a step one disqualification would be
appropriate. (R. 14-15).
At step two, the ALJ determined that Santana suffered from “severe” impairments,
including lumbar spine degenerative changes, fibromyalgia, chest pain, depressive and anxiety
disorders, and a history of substance abuse. (R. 15).
At step three, the ALJ determined that these impairments failed to meet or equal, either
on their own or in the aggregate, the severity presumed severe enough to render Santana disabled
without further assessment. 20 C.F.R. § 404, Subpart P, Appendix 1. (R. 15).
At step four, the ALJ first determined that Santana retained a Residual Functional
Capacity to perform “light work” (defined at 20 C.F.R. § 404.1567(b) and 416.967(b)) if limited
to only occasional “postural maneuvers,” and if able to avoid climbing ladders, ropes, and
scaffolds. (R. 16). The ALJ further limited the Residual Functional Capacity with the caveat that
Santana’s “mild” mental impairments allowed her to “understand and carry out 2-3 step tasks
and maintain concentration, persistence, and pace for 2-hour increments during an eight out
workday over a forty hour workweek.” (R. 16). Relying on vocational expert opinion, the ALJ

4

then determined that Santana’s Residual Functional Capacity (with its limitations) allowed her to
perform past relevant work as a fast food worker and counter attendant.
Although the ALJ found the step four determination sufficient to deny Santana’s claims,
the ALJ determined that if Santana’s past relevant work was insufficiently gainful, requiring the
ALJ to proceed to step 5, the decision would remain unfavorable. (R. 23). Specifically, the ALJ
determined, based on vocational expert opinion, that sufficient jobs in the national economy
existed that Santana could perform.
IV.

Discussion
A. The Treating Physician Rule
Plaintiff centrally contends that the ALJ failed to correctly address and weigh opinion

evidence from treating physicians when assessing her disability, and thereby erroneously
calculated her Residual Functional Capacity. A different assessment (for example, an ability to
perform only “sedentary” rather than “light” work, or a more than “mild” mental impairment)
could result in a different Residual Functional Capacity and thus a different determination at both
steps four and five, thereby necessitating remand.
Social Security regulations dictate the analytical path that an ALJ must follow when
assessing the impact of medical opinions on an overall determination of disability. 20 C.F.R.
§ 404.1527. As a threshold matter, the ALJ “will always consider the medical opinions” in the
petitioner’s case. 20 C.F.R. § 404.1527(b). The ALJ generally will give “more weight” to
opinions from “treating sources,” in order to account for those sources’ ability to provide “a
unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone.” 20 C.F.R. § 404.1527(c)(2). “A treating source is defined as a patient’s ‘own
physician, psychologist, or other acceptable medical source’ who has provided medical treatment

5

in an ongoing way.” Hagan v. Colvin, 52 F. Supp. 3d 167, 174 (D. Mass. 2014) (quoting 20
C.F.R. § 404.1502).
An opinion from a treating source must be accorded “controlling weight” if two
conditions are met: the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques,” and is not “inconsistent with the other substantial evidence in”
the petitioner’s case record. 2 Id. If not “controlling,” the treating opinion must still be evaluated
against six criteria in order to fulfill the mandate that the ALJ “always give good reasons” when
determining the weight a treating opinion deserves. 20 C.F.R. § 404.1527. Id. These six criteria
include the length and frequency of the treatment relationship; the nature and extent of the
treatment relationship; the amount of evidence offered in support of the treating relationship’s
opinion; the treating opinion’s consistency with the overall record; the treating source’s

2

SSR 96-29 provides the following guidance on the term “substantial evidence”:
This term describes a quality of evidence. Substantial evidence is “...more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” (Richardson v. Perales, 402 U.S. 389 (1971), SSR
71-53c, C.E. 1971-1975, p. 418.) The term is intended to have this same meaning in
20 CFR 404.1527(d)(2) and 416.927(d)(2). It is intended to indicate that the evidence
that is inconsistent with the opinion need not prove by a preponderance that the
opinion is wrong. It need only be such relevant evidence as a reasonable mind would
accept as adequate to support a conclusion that is contrary to the conclusion
expressed in the medical opinion.
Depending upon the facts of a given case, any kind of medical or nonmedical
evidence can potentially satisfy the substantial evidence test. For example, a treating
source’s medical opinion on what an individual can still do despite his or her
impairment(s) will not be entitled to controlling weight if substantial, nonmedical
evidence shows that the individual’s actual activities are greater than those provided
in the treating source’s opinion. The converse is also true: Substantial evidence may
demonstrate that an individual’s ability to function may be less than what is indicated
in a treating source’s opinion, in which case the opinion will also not be entitled to
controlling weight.

6

specialization; and other factors which tend to support or contradict the opinion. 20 C.F.R.
§ 404.1527(c).
This analytical process is no mere formality. See McCumber v. Colvin, 2014 WL
4804750 at *7 (D. Mass. Sep. 25, 2014) (“‘Controlling weight’ is the term used to describe a
medical opinion from a treating source that must be adopted the ALJ. . . . [U]nder the
regulations, the ALJ is required to explain the weight given to a treating source opinion and the
reasons supporting that decision.”) (emphasis in original); see also Halloran v. Barnhart, 362
F.3d 28, 32 (2nd Cir. 2004) (“We do not hesitate to remand when the Commissioner has not
provided ‘good reasons’ for the weight given to a treating physicians opinion and we will
continue remanding when we encounter opinions from ALJ’s that do not comprehensively set
forth reasons for the weight assigned to a treating physician’s opinion.”). And even when an ALJ
does provide reasons for discounting a treating source opinion, remand is proper if those reasons
are “unpersuasive” or “significantly flawed.” See Johnson v. Astrue, 597 F.3d 409, 411-12 (1st
Cir. 2009).
B. Dr. Finger’s Evaluation and the ALJ’s Treatment Thereof
The first relevant treating source opinion addressed by the ALJ comes from Dr. Finger.
(R. 19). Dr. Finger completed a “Physical Residual Functional Capacity Questionnaire” dated
September 10, 2013, in which she concluded that Santana “can lift less than 10 pounds, sit less
than 2 hours, stand/walk less than 4 hours, has difficulty using her hands, has pain that would
frequently interfere with concentration, and would require more than 3 absences per month.” (R.
19). Such an assessment would at most justify a residual functional capacity to perform
“sedentary” work. See 20 C.F.R. §§ 404.1567, 416.967 (“Sedentary work involves lifting no
more than 10 pounds at a time . . . .”).

7

The ALJ assigned “little weight” to Dr. Finger’s assessment and concluded instead that
Santana could perform “at least a light range of exertion and occasional postural maneuvers.” (R.
19).
As an initial matter, the court notes that the ALJ failed to provide any analysis of five of
the six criteria that must guide the ALJ’s assessment of a treating source opinion. Although Dr.
Finger described herself as Santana’s primary care physician, and reports Santana having fifteen
visits with her between January 2012 and September 2013 (R. 522), the ALJ’s decision includes
no discussion of the nature of Dr. Finger’s treatment relationship with Santana, nor of the length
or frequency of that relationship, nor of the evidence in support of Dr. Finger’s opinion, nor of
Dr. Finger’s specialization. Such limited explanation renders it difficult “to determine that the
Secretary applied the correct legal standards” and may be ground for reversal. Weiler v. Shalala,
922 F. Supp. 689, 694 (D. Mass. 1996).
Moreover, the reasons the ALJ did provide do not withstand light scrutiny. First, while
the ALJ concluded that Dr. Finger’s assessment was contradicted by “longitudinal objective
medical evidence . . . showing normal diagnostic cardiac testing,” an absence of cardiac
treatment, and a lack of cardiac diagnoses (R. 15), this apparently normal cardiac testing and lack
of cardiac treatment do not bear upon—let alone contradict—Dr. Finger’s diagnosis of, inter
alia, “chronic body pain, chronic joint pain, atypical chest pain, depression, anxiety [and]
numbness.” (R. 522). These diagnoses were the bases for Dr. Finger’s determinations of
Santana’s physical limitations (and, further, are consistent with the ALJ’s step two determination
of severe fibromyalgia). (R. 525-527). Dr. Finger’s Residual Functional Capacity evaluation did
not touch upon cardiac conditions or any exertional limits stemming therefrom. The ALJ’s
discrediting of her opinion on grounds of normal cardiac performance is accordingly

8

unpersuasive.
Second, the ALJ’s (lay) opinion that despite “degenerative spinal changes,” a lack of
“nerve root or spinal cord involvement or neuropathy” rendered Dr. Finger’s (expert, treating)
opinion undeserving of deference (R. 15) again runs contrary to the ALJ’s own finding of severe
fibromyalgia—which is characterized by normal “musculoskeletal and neurological
examinations” and “no laboratory abnormalities.” Johnson, 597 F.3d at 410 (quoting Harrison’s
Principles of Internal Medicine, at 2056 (16th ed. 2005)). Moreover, determinations such as the
medical relevance of an absence of “nerve root or spinal cord involvement or neuropathy” (R.
18)—determinations apparently without root in medical opinions in the record—evince an
impermissible interpretation of “raw data in a medical record.” Manso-Pizarro, 76 F.3d at 17.
The ALJ’s third reason—that “aside from pain, treating and examining sources have
repeatedly observed intact strength, sensation, and gait” (R. 15)—appears at first blush the most
credible (with the exception that “gait” appears irrelevant to Dr. Finger’s Residual Functional
Capacity evaluation). The ALJ roots (at R.18) this justification in Exhibits 4F, 11F pages 8, 13,
18, and 23F. (R. 372-381, 433, 437, 443 & 593-660).
Yet, these citations do not justify the ALJ’s decision. Specifically, citations to Exhibit
11F appear directed entirely to “progress notes” drafted by Dr. Finger which do not appear to
contradict Dr. Finger’s Residual Functional Capacity conclusions. For example, Exhibit 11F
page 8 (an evaluation following up on a kidney-stone-related hospitalization), Dr. Finger reports
Santana’s complaints of numbness, and references both the recurrence of numbness for several
days after hospitalization and the need for further neurological evaluation. (R. 433). Page 12 (and
13) observe continuing pain and a suspicion of “musculoskeletal back pain,” with no
commentary on sensation or gait. (R. 437-438). Page 18 likewise contains no findings either

9

contradicting those in Dr. Finger’s Residual Functional Capacity evaluation or the ALJ’s step
two conclusions of fibromyalgia.
Exhibit 23F consists of a series of notes taken during hospitalizations at Whidden
Hospital for a variety of events, including chest pain, a car accident, and kidney stones. (R. 593660). Taking these documents as whole, the court finds no meaningful inconsistences with Dr.
Finger’s Residual Functional Capacity evaluation (and in fact observes several pertinent
consistencies), and more importantly, notes that these hospital entries “do not relate these
diagnoses to specific residual functional capabilities such as those set out in 20 C.F.R.
§ 404.1567(a).” Rosado v. Secy’s of Health and Human Serv.’s, 807 F.2d 292 (1st Cir. 1986). In
other words, the physicians treating Santana during hospitalizations for specific medical events
like a kidney stone are not conducting an analysis sufficiently similar in kind to Dr. Finger’s
specific Residual Functional Capacity evaluation to meaningfully contradict that evaluation.
Finally, Exhibit 4F is a letter from a Dr. Nabil Ali to Dr. Finger, in which Santana is
reported to have what appears to be normal neurological functioning. (R. 380). Again, the court
finds relevant that the letter was addressed to Dr. Finger, and was thus information she
presumably considered when completing her Residual Functional Capacity evaluation. But
ultimately, given the record as a whole, this single letter—which appears tangential to the
Residual Functional Capacity’s actual findings regarding strength and sensation—does not
amount to the “substantial evidence” contrary to Dr. Finger’s conclusions.
In sum, the court notes that in Johnson, 597 F.3d at 412-413, the First Circuit remanded
partially because the ALJ relied on unpersuasive Residual Functional Capacity evaluations that
purported to contradict the treating physician’s own Residual Functional Capacity evaluation.
See also Berrios Lopez v. Secretary of Health and Human Serv’s, 951 F.2d 427, 431-32 (1st Cir.

10

1991) (evaluating the relative credibility among several medical evaluations of functional
capabilities). Here, the ALJ’s judgment went one step further: he assigned “little weight” to Dr.
Finger’s Residual Functional Capacity evaluation when there were no other physical Residual
Functional Capacity evaluations at all, contradicting or otherwise. See Rosado, 807 F.2d at 29394.
The ALJ’s fourth and final justification for assigning “little weight” was Santana’s
alleged lack of follow-through with treatment, and admissions of activities such as “taking care
of her grandchild, housework, shopping, and going to the pool.” The court first notes that the
domestic activities just described—activities possibly carried out pursuant to sheer necessity—do
not in and of themselves contradict Dr. Finger’s conclusions. One can at least minimally take
care of a grandchild, attend church, perform housework, shop and go to a pool even if—as Dr.
Finger described Santana—she can sit for no more than 30 minutes continuously, stand for no
more than one hour continuously, lift less than 10 pounds only occasionally, and only sit for two
hours and stand/walk for a total of four hours in an 8 hour workday. (R. 525, 526). And finally,
the somewhat sparse evidence provided by the ALJ for patient noncompliance does not
sufficiently overcome the controlling errors identified here. 3

The Commissioner’s memorandum argues further, citing Berrios Lopez v. Sec’y of Health and
Human Serv’s, 951 F.2d 427 (1st Cir. 1991), that Dr. Finger’s Residual Functional Capacity
assessment is a “physical checklist” that is not to be afforded much weight. Def’s Mot. 12. (The
same argument is made as to two additional Residual Functional Capacity evaluations which
Santana contends are authored or countenanced by Dr. Crisostomo, Santana’s treating mental
health provider (Exhibits 17F and 19F)). Notably, the ALJ did not discount the treating
providers’ opinion for this reason. The court does not find that these evaluations are “checklists”
within the meaning of Berrios Lopez. The Berrios Lopez court was addressing the reports from
“consulting, non-examining physicians” who offer “little more than brief conclusory statements
or the mere checking of boxes” and who do not at least “briefly mention[] all of [a] claimant’s
alleged impairments and state[] medical conclusions as to each.” Id. at 431. The evaluations at
issue here do not trigger any of these concerns: they were both completed by treating medical
providers; they both offer “more than brief conclusory statements”; and they both at least briefly
3

11

In conclusion: the ALJ not only eschewed the analytical process required by the treating
physician rule, but also replaced that analytical process with justifications that do not withstand
comparison with the record. Further, the ALJ failed to explain whether these perceived flaws in
Dr. Finger’s evaluation militated against assigning “controlling weight” to her opinion, or simply
factored into his assessment of what non-controlling weight to provide her. But it does not
matter: in either case, the reasons provided are inadequate, and remand is therefore necessary.
C. The ALJ’s Treatment of Psychiatric Opinion Evidence
The reasoning set forth supra has further application with regard to the ALJ’s
determination of Santana’s mental impairments.
As an initial matter, the explicit application of the treating physician rule to
“psychologists” and its reiteration that impairments may stem from “psychological
abnormalities” underscore that ALJ’s are bound to assess evidence of mental impairments on
equal terms with physical impairments. 20 C.F.R. § 404.1527.
This point bears on the ALJ’s decision because the record indicates Santana was under
the ongoing psychiatric care of Dr. German Crisostomo (R. 455, 662, 664, 666, 672), rendering

mention Santana’s medical impairments.
The Commissioner further seeks to discredit Dr. Finger’s evaluations because of notations that
state that some of her findings were “per patient report.” This concern illuminates an error in the
record. The record appears to contain a duplicate of “page 3” of Dr. Finger’s evaluation: one at
R. 524, and another at R. 525. These pages contain different notations and conclusions—and the
second page does not contain the “per patient report” language identified by the Commissioner.
The court is unable to determine which of the two is correct, whether one is included accidently,
or whether Dr. Finger intentionally included two versions of this page—one containing
Santana’s own reports, and another Dr. Finger’s independent conclusions. This discrepancy is
cause for concern, as the court cannot adequately address the Commissioner’s argument
concerning reliance on Santana’s subjective self-evaluation, nor adequately assess the ALJ’s
assessment of Dr. Finger’s evaluation. On remand, the ALJ is directed to investigate and address
this discrepancy in the record.
12

him a “treating source” under 20 C.F.R. § 404.1502 (a point the Commissioner does not appear
to contest). Such would entitle his opinions—notably, those opinions which Santana asserts are
his Residual Functional Capacity evaluations (Exhibits 17F and 19F)—to the treating physician
process outlined above. 4 And such could significantly alter the ALJ’s conclusions, as these
purported Residual Functional Capacity evaluations (which may be entitled to significant if not
controlling weight) describe mental disabilities severer than those the ALJ assigned to Santana.
Yet, to a further extent than described above concerning Dr. Finger’s opinions, the ALJ
failed to assess what Santana asserts are Dr. Crisostomo’s opinions in the manner prescribed by
20 C.F.R. § 404.1527. In finding (at R. 20) that Santana’s mental symptoms cause “no more than
mild restriction[s]” as to daily living and “no more than mild difficulties” as to social
functioning, the ALJ summarized his assessment of contrary and relevant medical opinion
evidence (all of which he afforded “little weight”) thusly:
Treating source Malloy LMHC opined that the claimant has marked limitation in
daily activities, social functioning, and maintaining concentration, would require
more than 3 absences per month, and has poor to no ability to make simple decisions,
complete a normal workday without psychological symptom interruption, and
respond to work setting changes, (Exhibit 17F), essentially that she is totally
mentally disabled from working. Likewise, another source opined that the claimant
has marked limitation in daily activities, social functioning, and maintaining
concentration, would require more than 3 absences per month, and has poor to no
ability to complete a normal workday without psychological symptom interruption
and respond to work setting changes (Exhibit 19F). Treating source Rickard MS
opined that the claimant is unable to work, is unable to function with daily activities
and deal with others (Exhibit 14F page11). Treating source Butler RN opined that
the claimant is unable to work and sustain concentration (Exhibit 14F page10). These
opinions as to total mental disability have all been considered but ultimately given
little weight for several reasons. Although these sources all treated the claimant and
some are acceptable medical source doctors, (SSR 06-03p), the longitudinal
objective medical evidence and even several of the claimant’s own
The Commissioner contends Dr. Crisostomo’s alleged signatures on these Residual Functional
Capacity evaluations are illegible. Were illegibility the basis for the ALJ’s perfunctory treatment
of this evidence, the ALJ should have either resolved the question below or, in the least,
explained in his opinion how the alleged illegibility affected the decision.
4

13

reports/admissions do not support such marked limitations and limitations as to total
disability, for the reasons as just fully discussed above in this Finding in the
discussion of each of the individual “paragraph B” criteria. (AR 22).
(R. 22) (emphasis supplied throughout).
This explanation entirely fails to evince how or whether the ALJ measured Exhibits 17F
or 19F—the Residual Functional Capacity evaluations Santana contends are signed by Dr.
Crisostomo—against the criteria set forth in 20 C.F.R. § 404.1527. In other words, the opinion
lacks any evidence that the ALJ considered the “unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone,” but which can be provided by a
treating physician. 20 C.F.R. § 404.1527(c)(2).5
Arguably the ALJ did comply with the directive that treating source opinions be
compared with the record as a whole. But, contrary to the ALJ’s findings on this point, the
“longitudinal objective medical evidence” and Santana’s own “reports/admissions” do not appear
to facially contradict the “treating sources” the ALJ identifies. For example, Exhibit 17F—which
(as the ALJ concedes) essentially states that Santana is totally, mentally disabled—notes also that
she has “learned to adapt to her surroundings so long as they remain stable, safe, and support her
physical and emotional needs.” (R. 517). Such does not necessarily run contrary to the church
attendance, child rearing, and various social and domestic activities the ALJ repeatedly cites as
justification for discounting the medical opinions in the record. The same analysis attends the

Indeed, opaqueness infects most of the ALJ’s explanations concerning the psychiatric opinion
evidence. For example, Exhibit 17F instructs the author, if not an MD or licensed psychologist,
to obtain the co-signature of an individual licensed as such—which Sarah Malloy, LMHC clearly
did. (R. 520). Yet the ALJ’s opinion appears to attribute Exhibit 17F entirely to Mallow,
ignoring the other signature. (R. 22). The ALJ’s opinion further attributes Exhibit 19F to an
“another source” without any specific commentary as to its authorship. (R. 22). Still further, the
ALJ failed to assess any of the named opinion sources in accordance with the criteria set forth in
20 C.F.R. § 404.1527.
5

14

Residual Functional Capacity evaluation found at Exhibit 19F, and the statement from Richard
MS (at R. 463), which appears primarily directed at Santana’s ability to work rather than her
ability to function as the ALJ describes. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.
2012) (“The critical differences between activities of daily living and activities in a full-time job
are that a person has more flexibility in scheduling the former than the latter, can get help from
other persons [ . . . ] and is not held to a minimum standard of performance, as she would be by
an employer.”). (Posner, J).
In sum, the ALJ’s discussions of, and justifications for, discounting the several opinions
contradicting his Residual Functional Capacity conclusion do not sufficiently demonstrate proper
legal accordance with the treating source procedures. Without such a demonstration, remand is,
again, necessary.6
V.

Conclusion
In light of the foregoing, the court ALLOWS Plaintiff’s Motion to Reverse and Remand

the Decision of the Commissioner [#16] and DENIES Defendant’s motion to Affirm the
Commissioner’s Decision [#22]. Plaintiff’s application is REMANDED for further proceedings
consistent with this opinion. The court further DIRECTS the reviewing ALJ to resolve whether
Santana is insured for SSDI benefits per the procedures listed in 20 C.F.R. § 404.130, in light of

The court further notes, without reaching the issue, that the ALJ’s assessment of Santana’s pain
and symptoms seems not to fully take into account the unique diagnostic and physiological
realities of fibromyalgia, see Johnson v. Astrue, 597 F.3d 409 (1st Cir. 2009), a condition the
ALJ found Santana suffers from to a severe degree, and thus a condition whose unique
symptoms must be evaluated in accordance with 20 C.F.R. § 404.1529 (R. 15). As Johnson
states: “[Once] the ALJ accepted the diagnosis of fibromyalgia, she also ‘had no choice but to
conclude that the claimant suffer[ed] from the symptoms usually associated with [such
condition], unless there was substantial evidence in the record to support a finding that claimant
did not endure a particular symptom or symptoms.’” Id. at 414 (quoting Rose v. Shalala, 34 F.3d
13, 18 (1st Cir. 1994)) (emphasis in original).
6

15

her contention that some earnings have been falsely attributed to her. See Pl.’s Mot. 2 n.1.
IT IS SO ORDERED.
December 23, 2016

/s/ Indira Talwani
United States District Judge

16