Malone v. Colvin

Filing 24

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the reasons stated, Malone's motion to vacate and remand (Docket No. 19 ) is ALLOWED. The Commissioner's motion to affirm (Docket No. 20 ) is DENIED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TONYA MALONE,

Plaintiff,
Civil Action

V .

No.

15-13831-PBS

CAROLYN W. COLVIN,
Commissioner of Social

Security Administration,
Defendant.

MEMORANDUM AND ORDER

February 24,
Saris,

2017

C.J.
INTRODUCTION

Plaintiff Tonya Malone, who has a history of pain and
mental health issues, seeks review of the denial of her claim

for Social Security disability benefits, arguing that the

Administrative Law Judge {''ALJ'') erroneously failed to consider

the opinion of an examining consultative orthopedist and
disregarded the findings of state agency psychologists that she
has moderate limitations in social functioning that required a

"supportive employer." Because the ALJ failed to sufficiently
explain why he discredited the opinion of the examining
consultative orthopedist, the Court ALLOWS Malone's motion to

vacate and remand the decision of the Commissioner

(Docket No.

19) and DENIES the Commissioner's motion to affirm (Docket No.
20) .
FACTUAL BACKGROUND

Malone applied for Disability Insurance Benefits on August

14, 2012, claiming disability due to coccydynia, hernia,

fibromyalgia, right hand arthritis, migraine headaches, obesity,
bipolar disorder, depression, and anxiety. Malone claimed that

her disability began on August 28, 2011. Malone was forty-eight

years old when the ALJ denied her application on July 24, 2014.
Malone worked most recently as a dual-diagnosis counselor

at a Long Island shelter. R. 33. Prior to that, Malone worked as
a nursing assistant. R. 33. Malone attended high school through

the eleventh grade. R. 32. She did not pursue a GED, but she did

complete a nursing assistant program and receive a certificate.
R.

I.

32-33.

Physical Health Conditions
A.

Chronic Pain

Malone's medical record contains frequent references to

back pain, abdominal wall pain, and whole body pain dating back
to 1998. E.g.,

R.

271,

307,

440,

455.

A January 22, 1998 evaluation by Dr. Godwin Darko

referenced complaints of knee pain and middle and upper back

pain. R. 271. A February 18, 1998 radiology consultation by Dr.

Daniel O'Connor referenced a history of headaches, neck, and

back pain stemming from an injury one year prior. R. 275. Dr.
O'Connor found no evidence of fracture,

abnormality.

R.

tissue swelling,

or

275.

After slipping and falling on water on June 6, 2000, Malone

sought treatment from Dr. Crowley, an emergency room physician,
for neck and back pain. R.

295.

On August 10, 2006, Malone sought treatment for abdominal

pain at the incision site of a tubal ligation six years prior.
R. 307. Dr. Andrew Glantz performed an incisional hernia repair
and located two incisional hernias at the site of the past

incision. R.

307. During a follow-up visit on September 25,

2006, Dr. Glantz described Malone as "fully recovered" from the
hernia surgery.

On June 2,

R.

311.

2008, Malone was injured in a car accident. R.

321. The next day, she went to the emergency room and reported
nausea, headache, body aches, and migraine. R.

321. On June 25,

2008, Malone sought treatment from her primary care physician.
Dr. Kathleen Crowley. R. 321. Dr. Crowley indicated that while

Malone reported that she did not feel better, the mechanism of
her injury was unclear. R.

321.

On September 14, 2012, Malone sought treatment from Dr.
Thomas Ostrander.

R.

455.

Dr.

Ostrander described Malone as

having a history of ^^chronic pain" with headaches and abdominal
wall hernia with cramping. R.

455.

Two weeks later, on September 28, 2012, Malone sought a
behavioral health evaluation from Social Worker Judith Bello. R.

499. During the appointment, Malone reported pain in her back,
neck, knees, shoulder, head, and tailbone. R. 500. Malone rated

the pain intensity as an eight on a pain intensity scale of one
to ten.

R.

500.

On November 7, 2012, Malone had a follow-up appointment
with Dr. Ostrander. R.

490. Malone conveyed during the office

visit that the ^'pain continues." R.

4 90.

On November 14, 2012, during a therapy appointment with

Psychotherapist Stephanie Freeman, Malone reported pain in her
head and stomach that rated eight out of ten on a ten-point pain
scale. R.

424. On the same date, Malone was also evaluated by

Dr. Anna L. Fitzgerald. R. 440. Dr. Fitzgerald noted that Malone
suffered from "chronic pain." R.

440.

On December 5, 2012, during a therapy appointment with

Freeman, Malone reported constant whole-body pain of high

intensity (ten on a pain scale of one to ten). R. 412. Freeman's
notes indicated, "[Patient] reported she is still experiencing a

great amount of physical pain and medication is not relieving
the pain." R. 413. During Malone's next psychotherapy

appointment on December 19, 2012, Malone again reported pain of

ten out of ten with constant pain in her stomach and head. R.
464. A few weeks later, on January 9, 2013, Malone reported

physical pain at a severity of four out of ten. R. 417. Malone
again reported physical pain during a January 16, 2013 therapy
session, with a severity of five out of ten. R. 450.
Malone returned for a follow-up with Dr. Ostrander on

February 25, 2013. R. 429. The treatment record described Malone
as having a history of ''chronic pain" with codeine "no longer

working for her pain." R. 429. Malone was diagnosed with Chronic
Pain Syndrome and prescribed Fentanyl pain patches. R. 431.
At an office visit on March 27,

2013 with Dr. Ostrander,

Malone reported that morphine was "working well" to control her
pain. R.

473.

Dr. Anne Fitzgerald evaluated Malone on April 24, 2013, at

which point Malone reported pain of a ten out of ten. R. 485. At
the appointment, Malone reported that she had been prescribed
morphine for her hernia and pain. R. 484. Malone expressed
wariness of narcotics due to her history but deemed the morphine

"necessary." R. 484. Dr. Fitzgerald noted that "pain persists

but improved with current treatment." R. 487. At a psychotherapy

appointment on the same day, Malone noted "constant head, back,
and stomach pain over the course of two weeks." R. 495. On

August 6, 2013, Malone sought treatment from Dr. Daniel
Cottrell, her new primary care physician, for chronic pain.

abdominal pain, and headaches. R. 513. Malone reported she could
"barely move" and was "unable to walk long distances." R. 513.
On September 30, 2013, Malone sought treatment from Dr.
Cottrell for increased hip and back pain. R. 509. Treatment

notes referenced "chronic pain — Fibromyalgia." R. 509. No

cause, trauma, or injuries were reported. R. 509. Dr. Cottrell
noted that "pain is worse of late for unclear reasons" and that
"she is very concerned about opiates and worries about
addiction." R. 511. Malone was prescribed Percocet. R. 511.

On October 3, 2013, Dr. Cottrell submitted a medical report

to the Massachusetts Disability Evaluation Services stating that

Malone had "chronic pain, fibromyalgia" that would affect her

ability to work for more than a year. R. 538, 542. Dr. Cottrell
stated that Malone was prescribed MS-Contin and Percocet for
pain management. R.
B.

538.

Migraines

Malone has a history of migraines dating back to her slipand-fall incident on June 6, 2000, when she lost consciousness
and suffered a seizure. R. 295. The following day, Malone was

evaluated by Dr. James Otis for severe headaches and seizure. R.
288. An EEC revealed no abnormalities. R. 288.

On September 14, 2012, Malone sought treatment from Dr.
Ostrander, reporting headaches that were "under moderately

acceptable control" with Tylenol with codeine. R. 455. However,

when Malone was evaluated by Social Worker Judith Bello at
Boston Medical Center two weeks later, Malone reported headaches

and rated the intensity of her pain as eight out of ten. R.
On October 4,

500.

2012, Malone sought urgent care from Dr.

Jordana Meyerson and reported ^^a headache that is not alleviated
by Tylenol with codeine." R.

469.

On November 14, 2012, Malone sought psychological treatment
at Boston Medical Center and noted head pain of an eight out of
ten on the pain scale. R.

424. Malone reported that her pain

medication had recently been changed from Tylenol with codeine
to codeine. R.

425.

During Malone's next psychotherapy

appointment on December 19, 2012, Malone reported ^^intense
migraines" at a severity of ten out of ten. R.

464-65.

On January 9, 2013, during a therapy appointment with
Psychotherapist Freeman, Malone reported constant head pain at a
severity of four out of ten. R.

On February 25, 2013,

417.

as described above, Malone reported a

headache to Dr. Ostrander. R.

429-30. Malone was diagnosed with

Chronic Pain Syndrome and prescribed Fentanyl pain patches. R.
431.
C.

Arthritis

On December 15, 2004, Malone sought treatment for

difficulty straightening her finger to full extension. R.
Dr. Andrew Stein opined that she had a reflex inhibition
7

305.

stemming from residual pain from a past laceration. R. 305. On
June 22, 2005, Malone returned for a follow-up appointment,

where she reported no pain in her finger but reported "a droop
when she tries to fully straighten it." R. 306. Dr. Stein
indicated Malone could make a fist without difficulty and

maintain full extension for approximately ten seconds, at which

point her finger joint begins to ^^droop to approximately 10
degrees." R. 306. Dr. Stein indicated that Malone had a partial
EDC tendon injury, but that with time and exercise it was

possible she would hopefully be able to "maintain the long
finger in full extension." R. 306.

On June 12, 2007, Dr. Stein diagnosed Malone with chronic

partial EDC tendon laceration and performed a delayed primary

repair of the EDC tendon. R. 313. A follow-up appointment with
Dr. Stein on July 9, 2007 revealed the finger was "well healed."
R. 315. A "slight PIP lag" was identified and exercises
recommended.

R.

315.

On August 22, 2007, Malone was again seen by Dr. Stein,
with increased functioning in her finger and no complaints of

pain. R. 317. However, Dr. Stein noted that Malone "still is not
satisfied with the PIP extension." R.
II.

317.

Mental Health Conditions

Malone's psychological symptoms are documented throughout
her medical record and predate her alleged date of onset of

August 28,

2011. Her psychiatric diagnoses include post-

traumatic stress disorder, bipolar disorder, depressive
disorder,

and substance abuse.

R.

321,

445,

487. Malone's

earliest documented complaints of psychiatric illness date back

to January 22, 1998, when she was prescribed the antidepressant
Amitriptyline. R.

273.

On August 21, 2006, during a surgical visit for hernia

repair, Malone was described by Dr. Andrew Glantz as ^"hostile,"
^^argumentative," and ^^threatening to ALL staff members." R.

309.

On September 25, 2006, during a follow-up visit at the same
clinic, Malone was described as "quite nasty and rude to all the
nursing an[d] resident staff." R.

311.

During an appointment on June 25, 2008 with Dr. Kathleen

Crowley in primary care, Malone reported pain and inability to
sleep. R.

321. Dr. Crowley opined that Malone's pain symptoms

were "exacerbated by lack of sleep and anxiety." R.

322.

On September 28, 2012, Malone received a behavioral health
evaluation by Social Worker Bello at Boston Medical Center. R.
499. Malone reported "feeling increasingly overwhelmed, sad, and
anxious." R.

499. Malone reported that "there are some days she

does not want to get out of bed and will just cry all day." R.
499. Additional symptoms included symptoms of hopelessness,

social withdrawal, isolation, feeling overwhelmed, and increased

difficulty managing her temper. R. 499. Thoughts of suicide were

also noted.

R.

505.

The evaluation revealed that Malone had held

numerous jobs but ""cannot keep a job longer than 6-12 months
because she starts to get overwhelmed and anxious." R.

502.

Following a psychotherapy appointment on November 14, 2012,
therapist Freeman noted, ""[Patient] is experiencing major

depression." R.

425. Freeman noted that Malone displayed a loss

of interest in pleasurable activities, withdrawal from

relationships, decreased concentration, decreased appetite, and

sleep disturbances. R. 425. Freeman diagnosed Malone with
bipolar disorder not otherwise specified, post-traumatic stress

disorder, and major depressive disorder, unspecified. R. 425.
Following a psychiatric evaluation by Dr. Anna L. Fitzgerald on
the same date, Malone was described as ""dysphoric" and ""very

depressed" with ""prominent insomnia." R. 440. Psychiatric
medications at the time included Lamictal.

R.

426.

Malone was seen for psychotherapy on December 5, 2012. R.
412. Malone reported emotional pain of nine on a scale of ten.
R.

412. Malone's psychiatric medications were changed to

Remeron.

R.

414.

On December 19,

2012,

Freeman noted that Malone

reported feeling ""sad, depressed, and lonely the majority of the
time" and ""does not appear to believe her situation or her mood

can improve." R. 465. Malone continued to experience symptoms of

depression during psychotherapy appointments on January 9, 2013
and January 16, 2013. R.

417,

450.
10

At a January 30, 2013 appointment with Freeman, Malone
reported emotional pain of a ten out of ten. R.

435. Malone was

described by Freeman as ''tearful and sad" throughout the

therapy. R.

436. Malone's symptoms of depression continued

during therapy sessions on February 20, 2013, February 27, 2013,
and March 27,

2013.

R.

445,

459,

480.

On April 24, 2013, Malone was seen by Dr. Fitzgerald. R.
484. Malone reported that therapy "has been very helpful" and
"mood is much better." R.

484.

Dr.

Fitzgerald concluded:

"depression improved" and "anxiety stabilizing." R.

487.

Throughout Malone's therapy, her global assessment of

functioning

(GAF) was generally designated a fifty on a scale of

zero to one hundred, signifying serious impairment in

functioning. R.

488, 496, 505. But see R.

405 (reflecting a GAF

of 58) .

Ill.

State Agency Medical Consultants'

On November 26,

2012,

Dr.

Evaluations

Debra Rosenblum of the

Massachusetts Rehabilitation Commission Disability Determination

Services conducted a psychiatric examination of Malone to

determine her eligibility for disability benefits. R.

402. Dr.

Rosenblum described Malone as being in a "moderate amount of

physical pain throughout the evaluation." R. 404. Dr. Rosenblum
noted that Malone "writh[ed]" in her chair and had difficulty

getting in and out of her chair. R. 404. Dr. Rosenblum indicated
11

that Malone reported symptoms of decreased sleep, increased

irritability, constant racing thoughts, appetite problems, panic
attacks, flashbacks, nightmares, difficulty focusing, decreased
mood, and tearfulness. R. 405. Dr. Rosenblum described a ''long

standing history of mental health issues originating in
childhood trauma" with possible "genetic coding for mood
disorder." R. 405. Dr. Rosenblum cited "significant mood and

anxiety symptoms" and diagnosed Malone with bipolar disorder and

post-traumatic stress disorder. R. 405. Dr. Rosenblum documented
chronic pain and medical issues. R. 405. Dr. Rosenblum

designated a global assessment of functioning (GAF) of 58,
consistent with moderate symptoms or moderate difficulty

functioning. R. 405. Dr. Rosenblum noted that Malone's prognosis
was "poor." R.

405.

On December 3, 2012, state agency psychologist Dr. Nancy
Keuthen evaluated Malone for disability benefits. R. 75. Dr.
Keuthen found moderate limitations in Malone's ability to

maintain concentration, to perform activities within a schedule,

to maintain regular attendance, and to work in coordination with
others. R.

73.

Dr. Keuthen concluded that Malone would do best

in a more isolative work environment with a "supportive
employer." R.

74.

Malone was also examined on January 17, 2013 by Dr. Roger

Komer on behalf of Massachusetts Rehabilitation Commission
12

Disability Determination Services. R. 408. Dr. Komer indicated
that Malone carried a diagnosis of moderately severe bipolar

disorder dating back fifteen years. R. 410. Symptoms of anxiety
and moderate insomnia were also noted. R. 410. Dr. Komer noted

that Malone reported depression and noted that ^^the symptoms of
depression and anxiety have been stable for the past two
years." R.

408.

Dr. Komer reported coccydynia, with Malone reporting pain
following a fall two years prior. R. 410. During the
examination, Malone reported a slip and fall in 2011 with

"continuous" pain since that time. R. 408. Malone further

relayed that pain is more pronounced while sitting and during

prolonged standing. R. 408. Mild obesity was documented. R. 409.
Medications at the time of the examination were codeine (10 mg.

daily), Remeron, Tylenol, and MiraLax. R. 409.

On May 24, 2013, state agency psychologist Dr. Kathryn

Collins-Wooley evaluated Malone for disability benefits. R. 88.
Dr. Collins-Wooley indicated that Malone was experiencing
traumatic memories that were described as "a source of marked

distress." R. 83. Daily living activities were "limited by

physical pain." R. 88. Social functioning and concentration were
deemed moderately impaired. R. 87. Dr. Collins-Wooley reported
that Malone's "mood, anxiety and chronic pain would hamper task

focus and pace." R. 87. Dr. Collins-Wooley deemed Malone
13

moderately impaired in her ability to accept instructions and
criticism from supervisors and appropriately interact with
coworkers. R. 87. It was further noted that Malone could be

expected to sustain work tasks for ^^2-hr blocks during an 8-hr

day in an unpressured work environment with few interpersonal
challenges." R. 87. Dr. Collins-Wooley opined that Malone could
interact ^^infrequently" with the public provided that tasks were

predictable and routine. R. 87. However, it was noted that
Malone would perform best in a more ^^isolative" work
environment. R. 87. Finally, Dr. Collins-Wooley reported that
Malone ''could work for a supportive employer" but that she may

miss one to three days of work per month due to difficulty
getting out of bed. R. 87.

On June 12, 2013, state agency physician Dr. Jayant Desai
evaluated Malone's physical condition as part of her Social

Security disability determination. R. 82. Dr. Desai deemed
Malone "partially credible" in her characterization of her

symptoms based on past trauma to her coccyx, physical findings,
and Malone's ability to shop for food. R. 84. Dr. Desai
identified an exertional limitation of occasionally carrying

fifty pounds, with twenty-five pounds acceptable for frequent
carrying. R. 85. Dr. Desai determined that Malone was able to
stand and walk for about six hours of an eight-hour workday with
normal breaks. R. 85. Dr. Desai opined that Malone was able to
14

sit for a total of four hours with normal breaks permitted she

could adjust posture and shift weight. R. 85. Pushing and

pulling of objects was determined to be ''unlimited." R. 85. No
environmental or communication limitations were identified. R.
86. Based on Malone's history, Dr. Desai concluded that Malone
was not disabled.

R.

89.

On January 18, 2014, Dr. Peter Lindblad submitted an
evaluation that Malone suffered from fibromyalgia and had some

postural and manipulative limitations ("shoulder arm hand pain

slight to grip"). R. 530-31. She could occasionally lift and/or
carry twenty pounds, frequently lift and/or carry ten pounds,
stand and/or walk about six hours in an eight-hour workday, and

sit for eight hours in an eight-hour workday. R. 530. While the
notes are hard to read, it appears Dr. Lindblad diagnosed her
with "fibromyalgia diffuse tenderness upper and lower
extremities motion intact." R.

531.

On January 29, 2014, state agency consultant Nurse Kathleen
Dalton evaluated Malone to determine eligibility for

Massachusetts state disability benefits. R. 519. Dalton

identified several conditions that were of sufficient severity

to limit Malone's ability to perform basic work activities. R.

520. These conditions included: fibromyalgia; headaches; pain in

her back, hips, legs, shoulders, stomach, bowels, and shoulders.

15

bipolar disorder; post-traumatic stress disorder; and mood
disorder.

R.

520.

The Massachusetts Disability Evaluation Services declared

Malone disabled on January 30, 2014 with the disability expected
to last through December 30, 2014. R. 518.
IV.

Non-Treating Physician Consultative Evaluation

Dr. Frank Graf, a board-certified orthopedic surgeon,

performed a consultative evaluation of Malone on June 3, 2014.
R. 546. His review of Malone's medical record indicated that she

was on numerous medications (like morphine and Percocet) for her

chronic pain requiring opiate management." R. 546. After

examining Malone, Dr. Graf diagnosed her with

[c]hronic

cervical and right upper extremity pain, numbness and tingling;
chronic lumbosacral and right lower extremity pain, numbness and

tingling; neurological disorder with abnormalities in gait and
coordination." R. 552. He opined that the combined effects of
Malone's medical conditions rendered her disabled for
employment:

This
individual meets
the
criteria
of
musculoskeletal Listing 1.04 with involvement
of cervical and thoracolumbar spine with right

upper extremity and right lower extremity
sensory and radicular pain patterning. She
also has alterations in gait and station and
cranial
nerve
findings
including
tongue
fasciculations and loss of sense of smell,

which with the problems of balance and
maintaining gait and station are consistent
with a diagnosis of multiple sclerosis. The
16

combined

effect

of

her

chronic

musculoskeletal pain,

incisional

for

neurological

the

abdomen

and

wall

pain

findings

render her disabled for all employment.

R. 552. On the Medical Source Statement of Ability to Do Work-

Related Activities (Physical), Dr. Graf stated that she could

occasionally lift and/or carry less than ten pounds, frequently
lift and/or carry less than ten pounds, and stand and/or walk
less than two hours in an eight—hour workday, and that pushing
and/or pulling is limited in both the upper and lower
extremities. R. 554). Dr. Graf also statedi
concentration and pace." R.
V.

pain limits

555.

Hearing Before the ALJ
A.

Malone's Testimony

Malone testified before the ALJ on June 26, 2014. She

reported the following ailments: ''excruciating" hernia pain,
"severe chronic pain" in the back of right leg,

severe

arthritic pain in her right hand, "debilitating" migraines twice

per month, daily "functional" headaches, bronchitis, "severe"
back problems, fibromyalgia with "chronic, widespread pain,
depression, and anxiety. R. 35-40.
Malone testified that some days are worse than others. R.

45. Malone testified that on "worse" days, she has difficulty

getting out of bed and will cry for several hours. R. 45. Malone
testified that she is able to stand for five to ten minutes.
17

that she can walk for five minutes before needing to stop and

rest, and that she can travel up and down stairs but must ''grab

to hold on and pull [her]self up." R. 44-45. She reported she
can lift "[m]aybe a couple of pounds." R. 44-45. Malone
indicated that she is able to load the washing machine on "good"

days but that her family typically does the laundry. R. 41. When

transported by her husband or youngest daughter, Malone is able
to grocery shop. R. 40-41. Lastly, Malone testified she is able
do light cooking, such as making toast. R. 41, 47.
B.

Vocational Expert's Testimony

The ALJ asked the vocational expert. Dr. Amy Versillo, to

consider a hypothetical individual of Malone's age, education,
and residual functional capacity with the following limitations:

"capacity to perform work at the light range"; pain; depression;
anxiety; at-times impacted concentration, memory, and attention;

difficulty conforming to changes in work environment; inability
to perform complex tasks; restrictions to one- to four-step

repetitive tasks; no tandem tasks with co-workers; and only
casual contact with the public with no providing or receiving of
information.

R.

50-51.

The vocational expert testified that a hypothetical
individual with that description would be capable of performing

light, unskilled jobs that are present in significant numbers in
the national economy, including Small Product Packer and Sorter,
18

Production Labeler, and Bench Assembler. R.

52. With regard to

the number of jobs with a "supportive employer," the vocational
expert testified that the term was subjective and not readily
quantifiable. R.

56-57. When given a hypothetical of an

individual with additional limitations of carrying less than ten
pounds with standing and walking of less than two hours, the

vocational expert indicated that the identified jobs would be
precluded.

R.

59.

The vocational expert also testified to the hypothetical
employability of an individual who required additional absences
or extra breaks. R.

53-55. The vocational expert indicated that

missing more than one day a month as an employee in one of the
identified jobs would be "so substantially above average that's
not going to be tolerated." R.

55. The vocational expert further

testified that employment would be precluded if the individual
exceeded the designated breaks of five to ten minutes per two

hours of work and a thirty- to forty-minute lunch break. R.
55. Lastly,

53-

the vocational expert testified that it would not be

tolerable for a person in the above roles to consistently be off
task for greater than six minutes per hour.
VI.

R.

54-55.

Decision of the ALJ

The ALJ issued his decision on July 24,

concluded that Malone was not disabled R.

2014. The ALJ

10-21. At step one of

his analysis, the ALJ found that Malone had not engaged in
19

^^substantial gainful activity" since August 28, 2011. R. 12. At

step two, the ALJ concluded that Malone had the following severe

impairments: coccydynia, hernia, fibromyalgia, depression, and

anxiety. R. 12. The ALJ concluded that Malone's migraines, right
hand arthritis, and obesity were not severe impairments. R.

12.

At step three, the ALJ found that Malone did not have an

impairment or combination of impairments that met the severity
of a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1. R. 13. The ALJ indicated that Malone's coccydynia
did not meet the requirements of Listing 1.04, disorders of the

spine. R. 13. The ALJ concluded that Malone's mental impairments
did not meet the requirements of Listing 12.04, affective
disorders, or Listing 12.06, anxiety-related disorders, due to
failure to establish ^^marked restriction [s]" in at least two

domains.

R.

13. The ALJ concluded that Malone had only ^'mild"

restrictions in daily living; moderate difficulties in social
functioning; moderate difficulties in concentration,

persistence, or pace; and no episodes of extended
decompensation.

R.

13-14.

At step four, the ALJ evaluated Malone's residual

functional capacity. R. 15-19. As to physical capacity, the ALJ
found that "[Malone]'s treatment and physical health revealed

essentially mild findings throughout" and that as such, she had
the ability to perform ^'light work." R. 15, 17.
20

In arriving at this conclusion, the ALJ gave "great weight"
to the state agency medical consultants' determination that
Malone was capable of performing light work. R. 17. The ALJ gave

"some weight" to Dr. Cottrell's^ opinion that Malone could do

light work with additional postural and push/pull limitations,
finding the limitation to light work reasonable but finding no

support for the additional postural limitations "in light of the
generally normal physical examinations, exhibited normal

strength in all extremities and conservative treatment." R. 17.
The ALJ gave "little weight" to examining consultative

orthopedist Dr. Graf's opinion that Malone met criteria for
musculoskeletal Listing 1.04, disorders of the spine. R. 17. He

also gave little weight to Dr. Graf's opinion as to her residual
functional capacity. The ALJ noted (twice) that Dr. Graf's
examination was conducted "solely for the purpose of rendering

an opinion in support of this case" and that this "impacts the
credibility and relevance of his opinions." R. 17. The ALJ also
described Dr. Graf's findings as "inconsistent with the medical
evidence of record." R.

1

17.

It appears that the ALJ mistakenly referred to Dr. Lindblad

as Dr. Cottrell. The page in the record that the ALJ refers to
as Dr. Cottrell's opinion, "Exhibit lOF, 13," is actually an
evaluation conducted by Dr. Lindblad. R. 530; see also R. 522
(referring to RFC physical by Dr. Linblad").
21

As to psychiatric impairments, the ALJ found that the
record supported diagnoses of depression, anxiety, posttraumatic stress disorder, and a rule-out of bipolar disorder.
R. 18. But the ALJ found that Malone's psychiatric diagnoses
were not ^^as limiting as alleged." R. 18.

In reaching this conclusion, the ALJ cited the November 26,

2012 psychiatric evaluation conducted by Dr. Debra Rosenblum for
the Massachusetts Rehabilitation Commission Disability

Determination Services. R. 18. This evaluation documented a

global assessment of functioning (^^GAF") of 58, consistent with
^^moderate symptoms or difficulty functioning." R. 18. The ALJ
also considered a September 2012 mental health evaluation where

Malone presented as appropriately dressed, well groomed, alert,
attentive, cooperative, and engaged. R. 18. The ALJ also noted
that Malone had voluntarily terminated treatment and lapsed in
her medication. R. 18. The ALJ reasoned: ^^It is reasonable to

conclude that an individual with the alleged mental limitations

would not be able to go off medications and abstain from mental
health treatment without incident." R. 18.

The ALJ gave "some weight" to Malone's treating clinician s
opinion that Malone had "some impairments in social
interactions." R. 19. The ALJ reasoned that the medical record

supported the treating clinician's finding of social interaction

22

limitations, as Malone's therapy sessions emphasized her past

and present troubled relationships. R. 19.

The ALJ gave ''limited weight" to the evaluations of state

agency medical consultants Dr. Keuthen and Dr. Collins-Wooley.
R.

19. The ALJ reasoned that the medical consultants did not

have access to more recent medical evidence and that the opinion

of Malone's treating clinician was "more consistent with the
record as

a

whole."

R.

19.

In light of that analysis, the ALJ determined Malone's
residual functional capacity to be the following:
After

careful

consideration

of

the

entire

record, I find that the claimant has the
residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b)

she

is able to perform 1-4

tasks;

except

step repetitive

she is able to work with and without

supervision; she can work with coworkers, but
work may not involve tandem tasks; she is able
to

have

casual,

basic

interaction

with

the

general public that does not involve providing
or receiving information as part of the job
description.
R.

15.

Based on Malone's residual functioning capacity, the ALJ

found at step four that Malone was unable to perform any of her

past relevant work as a residential counselor or certified
nurse's

aide.

R.

19.

At step five, the ALJ assessed whether Malone could perform
other jobs in the national economy. Citing the testimony of a

23

vocational expert, the ALJ concluded that Malone was capable of

performing jobs that are present in significant numbers in the
national economy, including Small Product Packer and Sorter,
Production Labeler, and Bench Assembler. R. 20-21. Thus, the ALJ
determined that Malone was not disabled under the Social
Security Act. R.
VII.

21.

Procedural History

Malone filed her application for Social Security disability

benefits on August 14, 2012, alleging a disability onset date of

August 28, 2011. R. 64, 179. Malone's application was initially
denied on January 25, 2013. R. 76. Malone's request for
reconsideration was denied on July 15, 2013. R. 104. On June 26,

2014, an administrative hearing was held before the ALJ. R. 10.

On July 24, 2014, the ALJ issued the unfavorable decision
described above in Part VI.

R.

21.

The Appeals Council denied Malone's request for review on

September 24, 2015. R. 1. Malone now seeks judicial review of
the ALJ's decision under 42 U.S.C. § 405(g). Docket No. 1.
DISCUSSION

I.

Legal Standards
A.

Standard of Review

The ALJ's factual findings are entitled to deference. "We

must affirm the [ALJ's] resolution, even if the record arguably

could justify a different conclusion, so long as it is supported
24

by substantial evidence." Rodriguez Pagan v. Sec^y of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam); see
also Libbv v. Astrue, 473 F. App'x 8, 8 (1st Cir. 2012) (per

curiam); 42 U.S.C. § 405(g) (^'The findings of the Commissioner
of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . . ."). A finding is supported

by substantial evidence "if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adeguate

to support [the] conclusion." Rodriguez v. Sec^y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

"Even in the presence of substantial evidence, however, the

Court may review conclusions of law, and invalidate findings of
fact that are derived by ignoring evidence, misapplying the law,

or judging matters entrusted to experts." Rascoe v. Comm^r of
Soc. Sec., 103 F. Supp. 3d 169, 175 (D. Mass. 2015) (quoting
Musto V. Halter, 135 F. Supp. 2d 220, 225 (D. Mass. 2001)); s^
also Goncalves v. Astrue, 780 F. Supp. 2d 144, 146 (D. Mass.
2011).

B.

Statutory and Regulatory Framework

A claimant seeking benefits under the Social Security Act

must prove that he or she is disabled. 42 U.S.C. .§ 423 (a) (1) (E) .
To qualify as disabled, a claimant must show "inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment . . . which
25

has lasted or can be expected to last for a continuous period of
not less than 12 months." Id.

definition,

§

423(d)(1)(A).

To meet this

a claimant must ^'have a severe impairment (s) " that

renders the claimant '"unable to do

[their]

past relevant work or

any other substantial gainful work that exists in the national
economy." 20 C.F.R.

§ 404.1505(a).

The ALJ employs a five-step sequential evaluation process
to evaluate a claim for disability benefits.

Id. § 404.1520(a).

If the ALJ determines at any step that the claimant is disabled
or not disabled,

the evaluation may be concluded at that step.

See Freeman v. Barnhart, 274 F.3d 606,

608

(1st Cir. 2001). The

steps are:

1) if the applicant is engaged in substantial
gainful work activity, the application is denied;
2) if the applicant does not have, or has not had
within

the

relevant

time

period,

a

severe

impairment or combination of impairments,
the
application is denied; 3) if the impairment meets
the conditions for one of the "listed" impairments
in the Social Security regulations,
then the

application

is

granted;

4)

if

the

applicant's

"residual functional capacity""' is such that he or
she can still perform past relevant work, then the

application is denied; 5)

if the applicant, given

his or her residual functional capacity, education,
work experience, and age, is unable to do any other
work, the application is granted.

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).

In the first four steps, the claimant bears the burden of

proof to establish disability. Freeman, 274 F.3d at 608. On step

26

five, the burden shifts to the Commissioner. Arocho v. Sec^y of
Health and Human Servs., 670 F.2d 374, 375 (1st Cir. 1982).
II.

Analysis

Malone challenges the ALJ's residual functioning capacity
determination on two grounds. First, Malone contends that the

ALJ improperly rejected the opinion of Dr. Graf with regard to
her physical disability. Second, Malone argues that the ALJ

erroneously failed to account for her need for a ^^supportive
employer."
A.

Dr. Graf's Opinion

Social Security Administration regulations set out factors
that determine the weight the ALJ should give to a medical

opinion. The listed factors are:
examining relationship;

(1) whether there is an

(2) whether there was a treatment

relationship and the length and nature of the treatment

relationship;

opinion;
record;

(3) the extent of evidentiary support for the

(4) the consistency of the opinion with the overall
(5) the specialization of the source; and (6) other

relevant factors such as the source's knowledge of the overall
case and medical record.

20 C.F.R. § 404.1527 (c) (1)-(6).

Malone argues that the ALJ gave insufficient weight to the

opinion of Dr. Graf, an orthopedic specialist who physically
examined Malone at the request of attorneys in connection with

Malone's disability benefits application. Dr. Graf also reviewed
27

numerous medical records dating back to 1990. Dr. Graf

documented his findings in a typed report dated June 3, 2014. R.
546-52.

Dr.

Graf concluded that Malone was disabled because her

physical conditions met the criteria for musculoskeletal Listing
1.04, disorders of the spine. R. 552. He also assessed her
limitations in a

RFC form.

R.

553-54.

While Dr. Graf did not have a treatment relationship with

Malone and only saw her once, at least three factors supported

giving weight to Dr. Graf's opinion. He is a specialist in
orthopedic surgery, he physically examined Malone, and his
thorough typed report demonstrated extensive knowledge of
Malone's medical record. The ALJ nonetheless gave ^^little

weight" to Dr. Graf's report for two reasons. First, he

emphasized by stating twice that ^^Dr. Graf examined the claimant
solely in the context of this claimant for benefits, which

impacts the credibility and relevance of his opinions." R. 17.
Second, "his clinical findings and opinions are inconsistent
with the medical evidence of record.

(Exhibit 14F)." R. 17.

The ALJ provided insufficient reasons for discounting Dr.
Graf's report. As to the first reason, the First Circuit has
stated; "In our review of social security disability cases, it

appears to be a quite common procedure to obtain further medical
reports, after a claim is filed, in support of such a claim.
Something more substantive than just the timing and impetus of
28

medical reports obtained after a claim is filed must support an
ALJ's decision to discredit them." Gonzalez Perez v.

Health & Human Servs.,

812 F.2d 747,

curiam); see also Reddick v. Chater,
1998)

749

Sec^y of

(1st Cir. 1987)

157 F.3d 715,

726

(per

(9th Cir.

(''[T]he mere fact that a medical report is provided at the

request of counsel or, more broadly, the purpose for which an
opinion is provided, is not a legitimate basis for evaluating
the reliability of the report."); Rodriguez v. Astrue,
Supp. 2d 36,

44

(D. Mass.

The second reason,

694 F.

2010).

inconsistency with the medical record,

can be a valid reason to discount a medical report. See 20

C.F.R. § 404.1527(c)(4)

(listing consistency with the overall

medical record as a factor to be used to determine the weight to

give to a medical opinion). But the ALJ's explanation of the

inconsistency was nothing more than a citation to Exhibit 14F,
which is sixty-five pages of hospital records from Boston

Medical Center dated May 1, 2013 to February 7, 2014. A review
of the extensive medical record,

however,

indicates that Dr.

Graf's opinion is consistent with much (not all) of the record.
The records covered numerous office visits documenting a multi-

year history of neck and back pain, fibromyalgia and extensive
pain medication. For example, there were extensive reports of
chronic pain in the record. See, e.g., R. 584, 592, 615, 618.
Further, Malone has been on numerous pain medications, including
29

Fentanyl, Morphine,

Codeine, and Percocet, and yet indicated

that the medications did not adequately relieve her pain. R.
587,

596. The State Disability Evaluating Service gave her

benefits even though it also found her capable of performing

^'light work. "2 r, 522. Her treating physician. Dr. Cottrell,
concluded that she was disabled because of physical limitations.
R.

542.

The ALJ gave greater weight to the RFC of Dr.

Peter

Lindblad,2 a physician Board-certified in internal medicine. R.
17. But while the record is not crystal clear,
unlike Dr. Graf,

To be sure,

i t appears that

Dr. Lindblad did not physically examine Malone.

as the government points out,

the record sometimes

reports Malone as doing well without significant issues,

e.g.,

R.

474,

see,

and as having normal gait and mobility. But the

ALJ failed to point to what specifically in the medical record
was so inconsistent with Dr. Graf's opinion that he would give

Dr. Graf's opinion less weight than that of a non-examining
state medical consultant. The ALJ gave an inadequate explanation

of the decision.

See Taylor v. Astrue,

899 F. Supp.

2d 83,

88-89

2
Because this issue was not mentioned by the ALJ or
sufficiently briefed by the parties, the Court has an inadequate
basis for understanding why the claimant received state
benefits.

2

As explained in footnote 1, the ALJ's decision mistakenly

referred

to

Dr.

Lindblad

as

Dr.

Cottrell.
30

(D. Mass. 2012)

(^^[The ALJ] must adequately explain his

treatment of the opinion so that a reviewer can determine if the

decision is supported by substantial evidence."); Crosby v.
Heckler, 638 F. Supp. 383, 385-86 (D. Mass. 1985)

(^^The ALJ

cannot reject evidence for no reason, or for the wrong reason,

and must explain the basis for his findings. Failure to provide
an adequate basis for the reviewing court to determine whether
the administrative decision is based on substantial evidence

requires a remand to the ALJ for further explanation.").
The ALJ's decision to give little weight to Dr. Graf's

opinion but greater weight to a non-examining physician was
error in light of the failure to identify specific
inconsistencies in the medical record.

B.

"Supportive Employer"

Malone's second contention is that the ALJ erred in not

accounting for Malone's need for a "supportive employer" in the

residual functioning capacity analysis. At the hearing, the ALJ
gave the vocational expert an appropriate hypothetical that

reflected Malone's pain, depression and anxiety and resulting
deficits in concentration and ability to work with co-workers.
R.

50-51. However, Malone faults the ALJ for not putting the

need for a supportive employer in his hypothetical to the
vocational expert.

31

While i t is correct that both state agency medical

consultants stated that Malone ^'could" work for a supportive

employer, R.

74, 87, the term ''supportive employer" is

ambiguous. As the vocational expert testified: "[T]here's no way
to control for, or to look at job numbers and say this

percentage of supervisors or manufacturers, are supportive." R.
57. To conduct the step four and step five analyses and

determine how many jobs meet a claimant's physical and mental
needs,

there must be concrete and definable vocational

limitations. See Roberts v. Apfel,

2000)

222 F.3d 466,

471

(8th Cir.

(stating that hypothetical question posed to vocational

expert must "capture []

the concrete consequences of a claimant's

deficiencies"). The ALJ's residual functional capacity accounted

for other, more specific moderate mental and social limitations
that the doctors had identified.

The failure

to include the

"supportive employer" term in the residual functioning capacity
and in the hypothetical presented to the vocational expert does
not

constitute error.
ORDER

For the reasons stated, Malone's motion to vacate and

remand (Docket No.

19)

is ALLOWED.

affirm (Docket No.

20)

The Commissioner's motion to

is DENIED.
/s/ PATTI B.
Patti B.

SARIS

Saris

Chief United States District Judge
32