Walker v. Colvin

Filing 27

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered granting 16 Motion for Order to Reverse or Remand ; denying 22 Motion for Order Affirming Decision of Commissioner. The decision of the ALJ is VACATED, and the case is REMANDED for further administrative proceedings consistent with this opinion. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LEONA WALKER,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 1:16-cv-11965-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Plaintiff Leona Walker (“Ms. Walker” or “Claimant”) brings this action pursuant to
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of
the Commissioner of the Social Security Administration (the “Commissioner”) denying her
claims for Social Security Disability Insurance (“SSDI”) and Supplemental Security Income
(“SSI”) benefits. Currently pending are Claimant’s motion to reverse the Commissioner’s
decision denying her disability benefits [ECF No. 16], and the Commissioner’s cross-motion for
an order affirming the decision. [ECF No. 22]. For the reasons described herein, the Court finds
that the Administrative Law Judge’s decision was not supported by substantial evidence and
therefore VACATES the decision of the Commissioner and REMANDS the case for further
administrative proceedings consistent with this opinion.
I.

BACKGROUND
A.

1

Statutory and Regulatory Framework: Five-Step Process to Evaluate
Disability Claims

The original complaint was filed against Carolyn W. Colvin, but because Nancy A. Berryhill
became the Acting Commissioner of Social Security on January 23, 2017, she was automatically
substituted as the Defendant pursuant to Fed. R. Civ. P. 25(d).

“The Social Security Administration is the federal agency charged with administering
both the Social Security disability benefits program, which provides disability insurance for
covered workers, and the Supplemental Security Income program, which provides assistance for
the indigent aged and disabled.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 42
U.S.C. §§ 423, 1381a).
The Social Security Act (the “Act”) provides that an individual shall be considered to be
“disabled” if he or she is:
unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
42 U.S.C. § 1382c(a)(3)(A); see also 42 U.S.C. § 423(d)(1)(A). The disability must be severe,
such that the claimant is unable to do his or her previous work or any other substantial gainful
activity that exists in the national economy. See 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §
416.905(a).
When evaluating a disability claim under the Act, the Commissioner uses a five-step
process, which the First Circuit has explained as follows:
All five steps are not applied to every applicant, as the determination
may be concluded at any step along the process. 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.

2

Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).
B.

Procedural Background

Claimant filed her application for SSI and SSDI benefits on March 11, 2014. [R. 21]. 2
She alleged that she became disabled on December 1, 2013, due to various psychiatric disorders
including borderline personality, generalized anxiety, post-traumatic stress (“PTSD”), and major
depressive disorders, as well as delayed sleep phase syndrome. [R. 24, 317, 325]. Her date last
insured was December 31, 2015. [R. 39–40].
The Social Security Administration (the “SSA”) denied Claimant’s applications for SSI
and SSDI benefits on June 20, 2014, and again upon reconsideration on August 8, 2014. [R. 21].
Thereafter, Claimant requested an administrative hearing, and a hearing took place before
Administrative Law Judge (“ALJ”) Paul Carter on September 8, 2015. [R. 21, 30]. Claimant,
who was represented by counsel, appeared and testified at the hearing. [R. 21]. On October 19,
2015, the ALJ issued a decision finding that Claimant was not disabled. [R. 30]. The SSA
Appeals Council denied Claimant’s Request for Review on August 31, 2016 [R. 1]. On
September 29, 2016, Claimant filed a timely complaint with this Court, seeking review of the
Commissioner’s decision pursuant to section 205(g) of the Act. [ECF No. 1].
C.

Factual Background

Claimant was born on May 15, 1967. [R. 44]. She is unmarried and has no children. [R.
45]. Claimant currently resides in Boston, Massachusetts. [R. 43]. She holds a college degree in
English from the University of Massachusetts Amherst. [R. 45–46]. She began to pursue a
Master’s degree, but never completed her studies. [R. 46].

2

References to pages in the Administrative Record, which were filed electronically at ECF No.
11, are cited as “[R. __ ].”
3

Claimant has worked as a cashier or retail sales clerk on six different occasions from
2008 to 2013, never for more than six months at a time. [R. 227]. Claimant also worked as an
intern for a housing program for one to two months in 2009, as a clerk for the Department of
Revenue for three months in 2007, and as a substitute teacher for two periods of three to four
months in 2007. [R. 46, 227].
D.

Medical Evidence
1.

Record Evidence

Claimant’s medical records begin in 2011. At that time, she had been diagnosed with
major depressive disorder and borderline personality disorder by two health care providers, Dr.
Eugene Uzogara, MD, and Edwige Berrouet, Licensed Independent Clinical Social Worker
(“LICSW”). [R. 325–26, 329–34, 337]. Each doctor assessed Claimant’s Global Assessment of
Functioning (“GAF”), and each assigned Claimant a GAF of 55, noting that previously, her
highest GAF score within the past year was 50. 3 [R. 326, 331]. In April of 2011, Berrouet
described Claimant as “irritable, angry, and tired,” and noted that she was having problems with
sleep, had “issues” with friends and family, and held a negative worldview. [R. 379]. Later in
April of 2011, Berrouet continued to describe Claimant as irritable, angry, sleep deprived, and
paranoid, with a “very negative worldview.” [R. 435].

3

The Global Assessment of Functioning is used to assign a numerical value to an individual’s
overall level of functioning. A GAF score considers impairments in psychological, social, and
occupational functioning, but not impairments related to physical or environmental limitations.
The GAF Scale ranges from 1 to 100. A score between 41 and 50 denotes “serious symptoms” or
“any serious impairment in social, occupational, or school functioning.” A score between 51 and
60 denotes “moderate symptoms” or “moderate difficulty in social, occupational, or school
functioning.” A score between 61 and 70 denotes “some mild symptoms” or “some difficulty in
social, occupational, or school functioning.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. text revision 2000).
4

In July of 2012, Claimant visited Dr. Nishi Bhopal, MD, a sleep medicine fellow at a
sleep clinic, due to her difficulty sleeping, which she had experienced since age 13 or 14. [R.
315, 318]. Claimant reported that when she is awake for over 18–24 hours, her sleep deprivation
results in hallucinations, anxiety, paranoia, jitters, and irritability. [R. 315–16]. Claimant also
told Dr. Bhopal that she had been unemployed since she was fired from her job in October of
2011 due to customer complaints regarding her irritability. [R. 316]. Dr. Bhopal diagnosed
Claimant with delayed sleep phase syndrome and bipolar disorder. [R. 317–18]. Claimant
reported that her mood was “[h]orrible,” but Dr. Bhopal noted that, while she was irritable, she
was able to focus and act appropriately during their discussion. [R. 317].
In an initial behavioral health evaluation conducted by psychologist Shamaila Khan,
PhD, in July of 2012, Claimant reported “losing friends, family members distancing and losing a
job.” [R. 440, 444]. Dr. Khan noted that Claimant “has frequent angry outbursts and is
impulsive . . . often isolates herself to avoid negative interactions, is irritable, has difficulty
falling asleep and often lacks an appetite.” [R. 444].
In April of 2013, Claimant reported to primary care physician Dr. Joseph Wright, MD
that she had difficulty sleeping, difficulty with social interactions, and irritability. [R. 319–20]. In
June and July 2013, Claimant continued to report to Dr. Wright and Dr. Uzogara her issues with
depression, exhaustion, irritability, hostility, and “ongoing and pervasive social difficulties.” [R.
322, 402–403]. In July 2013, Dr. Uzogara documented Claimant’s symptoms of depression,
anxiety, and mood swings, but also noted that she was coherent, logical, of average cognition
and no perceptual impairment, with fair insight and mild judgement impairment. [R. 402–03]. In
November 2013, Claimant reported these ongoing issues to Emily Hames, LICSW, and stated
that she felt bullied at her part-time seasonal job. [R. 644–45].

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In January of 2014, psychiatrist Dr. Richard C. Pillard, M.D. noted that Claimant had
been laid off from her job and was “not doing well at all.” [R. 672.] Claimant continued to
experience issues with anxiety, severe depression, social isolation and chronic irritability. Id.
Claimant visited Dr. Pillard again in February of 2014, where they discussed her plans to apply
for SSDI and her feelings of resentment toward her family and sensitivity to criticism of any
kind. [R. 654]. Later in February, Dr. Pillard noted that while Claimant was alert, cooperative,
intelligent, and that she was not a high-risk patient, she was also “clearly unable to work from a
psychiatric perspective because of PTSD, Major Depression, and Borderline Personality
[Disorder].” [R. 649–50]. Claimant also visited primary care physician Dr. Nicolette Oleng,
M.D., in January of 2014, and during the appointment acted “very hostile,” and was “actively
splitting” her personality. [R. 715, 717].
In March, April, and May of 2014, Claimant continued to complain to Dr. Pillard, Dr.
Oleng, and Emily Hames on several occasions of social isolation, anxiety, difficulty sleeping,
fears about bullying, hopelessness about getting along with others, difficulty finding and
retaining employment, and a withdrawal from her family. [R. 374, 419–21, 461–62, 466–67,
472, 516–17]. In March of 2014, Claimant visited endocrinologist Dr. Dong Wook Kim, M.D.
seeking weight management treatment. [R. 476]. Dr. Kim’s notes characterized Claimant as a
“46 years old female with depression, PTSD, borderline personality disorder, and normal [body
mass index],” but later stated that Claimant denied depression and anxiety, and that she is obese.
[R. 476, 478]. Gynecologist Raja A. Sayegh, M.D. noted during an annual exam in April of 2014
that Claimant was well developed, well nourished, in no acute distress, and alert. [R. 353, 357].
During a May 2014 appointment, Dr. Pillard wrote that Claimant was “disabled, no doubt and
has done better from a mental status point of view since she quit the exploitative job she had

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struggled with.” [R. 481]. Dr. Pillard noted that Claimant’s prescribed dose of Seroquel had been
reduced from 800 mg. to 500 mg., as an effort to reduce the overeating Claimant had complained
of as a side effect of the Seroquel. [R. 481, 649]. Dr. Pillard also stated that, while Claimant was
“a thoughtful and intelligent person who [wa]s gradually improving in her ability to deal with
people,” he had agreed with Claimant on a plan to apply for SSDI because “[s]he is disabled.”
[R. 481].
Claimant also visited Dr. Roger Komer, M.D., 4 who completed a consultative
examination report for Disability Determination Services in June of 2014. [R. 457]. Claimant
reported her history of mental illness, joint pain in her knees, and weight gain, and stated that she
could walk three to five blocks. [R. 457–58]. She also reported her difficulty sleeping and stated
that medication improved her ability to sleep. [R. 458]. Dr. Komer documented Claimant’s
history of mental illness, including PTSD, anxiety, depression, insomnia and nightmares, and
wrote that she appeared “depressed and apathetic,” but seemed physically normal with the
exception of mild bony crepitus and possible mild degenerative joint disease in her knee joints.
[R. 458–59].
Between September and December of 2014, Claimant complained of sleep problems to
psychiatrist Dr. Oluranti Adepoju, M.D. During their September meeting, Claimant denied
experiencing depression or anxiety symptoms, and Dr. Adepoju noted that her mental status
examination was normal. [R. 583, 590, 606, 608–609]. Claimant complained of an increased
appetite in October, and while Dr. Adepoju characterized her mood as “anxious,” he noted no
depressed mood or sleep difficulties. [R. 590, 592]. Claimant complained of severe sleep

4

Dr. Komer’s specialty is not apparent from the record; however, it is clear that he was working
in a consultative capacity for Disability Determination Services.
7

problems in December, with Dr. Adepoju noting “she has not had a good night sleep in weeks, it
is getting very frustrating” but did not mention any other health concerns. [R. 583].
In January of 2015, Claimant again stated to Dr. Adepoju that she was experiencing
severe sleep problems which had lasted for seven weeks, but she did not complain of any
depressive symptoms. [R. 576]. Later that month, Dr. Adepoju noted: “She continues those night
and daytime awakening [sic]. Says she dozes and does not sleep . . . . Complains of exhaustion
and mental confusion.” [R. 569]. In February of 2015, Claimant reported an improvement in her
sleep, and that she was sleeping four to five hours most nights. [R. 562]. Dr. Adepoju wrote that
Claimant had a stable mood and no psychosis. Id. In March 2015, Claimant again stated that she
was sleeping four to five hours per night and Dr. Adepoju noted no other issues. [R. 555].
In April of 2015, Claimant reported difficulty sleeping to psychotherapist Shayna
Smallwood, but noted a slight improvement, and also claimed feelings of dysphoria and issues
with her familial relationships. [R. 723–25]. Smallwood found that Claimant had no issues with
mood, memory, insight, cooperation, engagement, judgement, or coherence. [R. 724]. On June 5,
2015, Smallwood recorded that Claimant had fair insight and judgment, normal cognition and
attention, and a concrete thought process, but that Claimant also “continued to discuss disruption
in relationships with family members,” and that her mood and affect were “angry.” [R. 733–34].
On June 4, 2015, when Claimant again visited Dr. Kim for weight management, Dr. Kim wrote
that Claimant’s weight and mood were stable. [R. 729]. Dr. Kim’s narrative description of
Claimant indicated that she suffers from depression, PTSD and borderline personality disorder,
but that she denied depression and anxiety. Id. On June 23, 2015, Dr. Adepoju noted that
Clamant was “doing well,” with no sadness, helplessness, or hopelessness, enjoying normal sleep
and appetite, and gave Claimant a generally good mental status evaluation. [R. 736–37]. On June

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24, Dr. Oleng wrote, “Patient with irritable mood, but not different from her usual. Actually
today the patient laughed for the first time since I have met her in over 1 year.” [R. 740]. From
Claimant’s alleged onset date forward, Claimant was consistently scored by various doctors as
having a GAF rating of 55. 5
2.

Medical Opinions

On May 1, 2014, Dr. Pillard completed a Mental Residual Functional Capacity (“RFC”)
Questionnaire to assess Claimant’s impairments. [R. 688–91]. On March 13, 2015, Dr. Adepoju
also completed a Mental RFC Questionnaire for Claimant. [R. 550–54]. The questionnaires
reflect very similar evaluations of Claimant’s mental RFC. Each doctor recorded an almost
identical list of symptoms, including, among others, anxiety, mood disturbances, aggression,
PTSD, sleep disturbances, and instability of interpersonal relationships. [R. 550, 688]. In all but
two categories of “Mental Abilities and Aptitudes Needed to do Unskilled Work,” the doctors
scored Claimant as either “Seriously limited, but not precluded,” or “Unable to meet competitive
standards.” [R. 552, 690]. In every category of “Mental Abilities and Aptitudes Needed to do
Semiskilled and Skilled Work,” the doctors scored Claimant as either “Seriously limited, but not
precluded,” or “Unable to meet competitive standards.” [R. 552, 690]. Each doctor assessed
Claimant as having a GAF score of 55. [R. 550, 688]. Dr. Adepoju noted that Claimant’s
impairments would cause her to be absent from work for more than four days per month, which
is the most severe selection available on the questionnaire. [R. 551]. Dr. Pillard’s questionnaire
did not include this question.

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The record contains over thirty references to Claimant’s GAF rating of 55. See, e.g., [R. 326,
331, 445, 581, 656].
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3.

Hearing Testimony

On September 8, 2015, Claimant testified at a hearing before ALJ Paul Carter. [R. 21,
30]. She stated that she was being treated for depression, anxiety, and delayed sleep phase
syndrome. [R. 47]. Claimant testified that she performs her own shopping for groceries and is
sometimes able to do housework and cook for herself. [R. 49]. She asserted that her mental
health symptoms interfere with her work, causing frequent conflicts with customers and coworkers, difficulty concentrating, and a lack of energy. [R. 53–54]. Claimant had no friends and
was isolated from family members. [R. 55]. She stated that she would be unable to be at work on
time, concentrate and follow directions at work, and get along with co-workers due to lack of
sleep and exhaustion. [R. 56].
Vocational expert (“VE”) Robert Lasky also testified at the hearing. [R. 57]. The VE
testified that Claimant’s impairments would preclude her from returning to her previous work,
but that jobs that Claimant would be able to perform exist in significant numbers in
Massachusetts. [R. 60–61].
II.

THE ALJ’S DECISION
On October 19, 2015, the ALJ issued a decision finding that Claimant was not disabled

under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act. [R. 30]. At step one of the five-step
analysis, the ALJ determined that Claimant did not engage in substantial gainful activity during
the time from her alleged onset date, December 1, 2013, through her date last insured, December
31, 2015. [R. 24, 39–40].
At step two, the ALJ found that Claimant had three impairments: depressive disorder,
generalized anxiety disorder/PTSD, and borderline personality disorder, which, individually or in
combination, caused severe impairments as defined by the Social Security Act’s regulations. Id.

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The ALJ noted that the record showed a number of other health conditions, including oral
aphthous ulcers (mouth sores), insomnia, and arthralgia of the knee. Id. The ALJ determined that
these limitations were not severe because the record showed that they were either controlled with
medication, minimally treated, lacked specific complaints, or failed to limit claimant’s ability to
work. Id.
At step three, the ALJ found that Claimant’s mental impairments did not meet or
medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. Id. Specifically, the ALJ found that Claimant’s impairments did not meet the
criteria listed under 12.04 (affective disorders), 12.06 (anxiety-related disorders), or 12.08
(personality disorders). Id. The ALJ determined that Claimant had a mild limitation in activities
of daily living; moderate difficulties in social functioning; moderate limitations in concentration,
persistence, or pace; and that the record showed no evidence regarding episodes of
decompensation. [R. 24–25].
At step four, the ALJ found that Claimant did not have the RFC to perform her relevant
past work. [R. 28]. At step five, the ALJ determined that she did have the RFC required to
perform some jobs which exist in significant numbers in the national economy. [R. 29]. The ALJ
determined, pursuant to the VE’s testimony, that Claimant could perform work as a store
laborer/general helper, photocopy machine operator, or ticket taker. [R. 29–30].
III.

STANDARD OF REVIEW
This Court has jurisdiction pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g).

Section 205(g) provides that an individual may obtain judicial review of a final decision of the
Commissioner of Social Security by instituting a civil action in federal district court. See 42
U.S.C. § 405(g). The district court may take a number of actions with respect to the

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Commissioner’s decision. First, under sentence four of section 205(g), the court has the power
“to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner . . . with or without remanding the cause for a
rehearing.” Id. A court’s decision under sentence four, however, can be based only on a review
of the administrative record of proceedings before the Commissioner. See Whitzell v. Astrue,
792 F. Supp. 2d 143, 147 (D. Mass. 2011) (citing 42 U.S.C. § 405(g)). If a claimant presents new
evidence to the court that was not contained within the administrative record, the court may not
consider it. “If additional evidence is to be considered, it must be by way of remand[]” pursuant
to sentence six of Section 205(g). Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495,
1503 (10th Cir. 1992). Sentence six permits the court to remand a case to the Commissioner for
further proceedings and order the evidence to be added to the record for consideration. See 42
U.S.C. § 405(g) (“The court may . . . at any time order additional evidence to be taken before the
Commissioner . . . but only upon a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding . . . .”).
Under section 205(g), sentence four, this Court’s review of the Commissioner’s decision
is “limited to determining whether the ALJ used the proper legal standards and found facts upon
the proper quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir.
2000). In conducting such review, the Court must defer to the Commissioner’s factual findings,
so long as such findings are “supported by substantial evidence,” but the court’s review of the
Commissioner’s conclusions of law is de novo. Id.; see also Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (“The ALJ’s findings of fact are conclusive when supported by substantial
evidence . . . but are not conclusive when derived by ignoring evidence, misapplying the law, or

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judging matters entrusted to experts.”). Substantial evidence means “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, 401 (1971) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229, (1938)). The Court “must affirm the [Commissioner’s] resolution,
even if the record arguably could justify a different conclusion, so long as it is supported by
substantial evidence.” Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st
Cir. 1987) (emphasis added) (citing Lizotte v. Sec’y of Health & Human Servs., 654 F.2d 127,
128 (1st Cir. 1981)).
IV.

DISCUSSION
Claimant advances three reasons why the ALJ’s determination should be reversed. As

explained below, the Court finds that Claimant’s second argument has merit, and therefore
remands the ALJ’s decision for further proceedings.
1.

Whether the ALJ Gave Proper Weight to Treating Physicians’ Opinions

Claimant argues that substantial weight should have been given to treating physicians Dr.
Pillard’s and Dr. Adepoju’s opinions as expressed in their Mental RFC Questionnaires. [ECF No.
17 at 9–12]. A treating source’s opinion should be given controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is consistent
with substantial evidence in the record.” Taylor v. Astrue, 899 F. Supp. 2d 83, 87 (D. Mass.
2012); 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s medical opinion on the
issue(s) of the nature and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight.”); Policy
Interpretation Ruling Titles II & XVI: Giving Controlling Weight to Treating Source Med.

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Opinions, SSR 96-2P at *1 (S.S.A. July 2, 1996) (same). “[A]ny conflict between a treating
physician’s opinion and other evidence in the record is to be resolved by the Commissioner.”
Rodriguez v. Astrue, 694 F. Supp. 2d 36, 46 (D. Mass 2010). While an ALJ is entitled to resolve
conflicts in the evidentiary record, she “cannot pick and choose evidence that supports a
particular conclusion.” Smith v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988) (citing Fiorello
v. Heckler, 725 F.2d 174, 175–76 (2d Cir. 1983). “Regardless of whether or not the
administrative law judge decides to discount the treating physician’s opinion, the decision ‘must
contain specific reasons for the weight given to the treating source’s medical opinion, supported
by the evidence in the case record.’” Rodriguez, 694 F. Supp. 2d at 42 (quoting SSR 96–2p, 1996
WL 374188, at *5).
The ALJ afforded “little weight” to Dr. Adepoju’s and Dr. Pollard’s opinions as
expressed in their Mental RFC Questionnaire because their opinions were “inconsistent with the
medical record as well as their own treatment notes.” [R. 28]. The ALJ’s opinion cites
extensively to the medical record, including the treating psychiatrists’ notes, other health care
providers’ treatment notes, and the state agency psychological consultants’ assessments. [R. 21–
30]. Both Dr. Adepoju’s and Dr. Pollard’s Mental RFC Questionnaires characterized Claimant as
moderately to severely impaired by her major depressive disorder, borderline personality
disorder, and PTSD. [R. 550–54, 688–91]. Dr. Adepoju’s notes rarely discuss such severe mental
health impairments, however, and consist mainly of discussion of Claimant’s pervasive sleep
issues. [R. 555, 562, 576, 583]; see discussion infra Section IV.2. The ALJ is correct that Dr.
Adepoju’s opinions are not supported by her own treatment notes. Dr. Adepoju’s treatment notes
are also inconsistent with Dr. Pollard’s RFC assessment and treatment notes, which extensively
discuss Claimant’s mental health limitations. In addition, the ALJ cited to multiple treatment

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notes in which Claimant denied depression, and had a “euthymic” (normal) mood [R. 27–28].
The ALJ’s decision to afford little weight to Dr. Adepoju’s and Dr. Pillard’s opinions does not
warrant reversal or remand, since the ALJ reviewed the record as a whole and provided specific
reasons for his conclusion that their opinions were not “well-supported” by their treatment notes
and other evidence within the medical record.
2.

Whether the ALJ Erred in Failing to Consider Claimant’s Delayed Sleep
Phase Syndrome in Determination of her RFC

Next, Claimant argues that the ALJ erred in failing to consider her diagnosis of delayed
sleep phase syndrome in his determination of her RFC. Dr. Bhopal diagnosed Claimant with
delayed sleep phase syndrome in July of 2012. [R. 317–18]. “[D]elayed sleep phase type is based
primarily on a history of a delay in the timing of the major sleep period (usually more than 2
hours) in relation to the desired sleep and wake-up time, resulting in symptoms of insomnia and
excessive sleepiness.” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 391 (5th ed. 2013). Extreme difficulty awakening and morning confusion are also
symptoms of delayed sleep phase syndrome, which is strongly associated with depression and
personality disorder. Id. at 392. The notes accompanying Dr. Bhophal’s diagnosis reflect that
Claimant has been suffering from sleep disturbances since age 13 or 14. [R. 315]. Claimant
indicated that she sometimes cannot sleep all night, and is not able to fall asleep until the next
morning; occasionally, she is unable to sleep for a period of several days. [R. 315]. Claimant also
reported to Dr. Bhopal that when she is awake for more than 18 to 24 hours, she experiences
hallucinations, anxiety, irritability, and paranoia. [R. 315–16]. Claimant stated that her inability
to sleep caused her extreme distress, resulted in an inability to hold a job for more than four to
five months at a time, led her to be fired from her last job due to irritability caused by lack of
sleep, and that she had a nervous breakdown because of her exhaustion. [R. 316–17].
15

The medical record from 2011 to 2015 consistently reflects Claimant’s ongoing sleep
issues. Claimant complained of difficulty sleeping or feeling tired to Dr. Uzogara [R. 329], Dr.
Berrouet [R. 341, 379, 435], Dr. Wright [R. 319–20], Dr. Pillard [R. 419–21, 672], Dr. Khan [R.
440, 443–44], Dr. Komer [R. 458–59], LICSW Hames [R. 461–62, 467, 517, 644], Dr. Adepoju
[R. 555, 569, 576, 583, 598], and psychotherapist Smallwood [R. 723–24]. Claimant also
testified about her delayed sleep phase syndrome during the hearing held before the ALJ. When
asked why she would be unable to be punctual and maintain a regular work schedule, Claimant
replied,
I’d have difficulty showing up, because I’d be exhausted, unable to get to work on
time. I’m not sleeping thoroughly through the night, and when I wake up, I’m not
well-rested. Again, that contributes to difficulty concentrating, and following
directions, remembering directions, and getting along, not having conflicts with
customers or fellow employees.
[R. 56]. Claimant also testified that she lies down during the day every day because she is not
well-rested when she wakes up in the morning. [R. 48–49].
At step two, the ALJ did not consider several of Claimant’s impairments, including her
sleep disorder, to be severe because the conditions were either “controlled with medication,
minimally treated, or . . . lack[ed] specific complaints and functional limitations preventing
work.” [R. 24]. These justifications with regard to her sleep disorder are unsupported by
substantial evidence in the record. The ALJ cites exhibits 5A at 6, 3F at 3, 4F at 67–68, and 10F
at 3 to support his finding; however, these treatment notes only discuss Claimant’s other
impairments, and none discuss her delayed sleep phase syndrome or suggest that this impairment
is controlled with medication or minimally treated. Id. The ALJ mentioned in his RFC
determination that some doctors noted relative improvement when Claimant was taking certain
sleep medications. [R. 26–27]. While Dr. Khan [R. 440], Dr. Adepoju [R. 555], and Dr. Komer

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[R. 457–58], did each note single instances of relative improvement in Claimant’s sleep while on
medication, the overall weight of the medical record shows that, over the course of years,
Claimant continued to suffer from difficulty sleeping even with medication. In addition, the
medical record and Claimant’s testimony show specific complaints related to her delayed sleep
phase syndrome’s impact on her functional limitations and inability to work. Therefore, the
ALJ’s determination at step two that Claimant’s delayed sleep phase syndrome was “controlled
with medication, minimally treated, or . . . lack[ed] specific complaints and functional limitations
preventing work” is unsupported by substantial evidence in the record.
The Commissioner points out that even if the ALJ erred in finding the delayed sleep
phase syndrome non-severe at step two, this is not, on its own, reversible error. [ECF No. 23 at
16]. Claimant appears to concede this point, but argues instead that the ALJ’s reversible error
occurred at step four, in his failure to consider all of Claimant’s impairments, including her
delayed sleep phase syndrome, in his RFC determination. [ECF. No. 26 at 4–5]. “Any error at
step two of the sequential analysis is harmless where the evaluation proceeds past step two and
the administrative law judge considers all of the claimant’s impairments at step four.” Jones v.
Colvin, No. 12-40061, 2014 WL 575457, at *12 (D. Mass. Feb. 10, 2014) (emphasis added). The
ALJ must consider all “medically determinable impairments,” including those which are not
severe, when assessing a claimant’s RFC. 20 C.F.R. § 416.945(a)(2). A determination of error
thus depends upon whether the ALJ adequately considered Claimant’s delayed sleep phase
syndrome in his calculation of her RFC.
In his step four RFC determination, the ALJ mentioned Claimant’s sleep issues only three
times, and then only in brief references to notes in Claimant’s medical record. The ALJ’s
decision never refers directly to her diagnosis of delayed sleep phase syndrome, and only

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discusses Claimant’s “insomnia,” “difficulty falling asleep,” or “trouble sleeping,” all of which
are symptoms of delayed sleep phase syndrome. [R. 26]. Nor did he address Dr. Bhopal’s notes
regarding the impact that her delayed sleep phase syndrome had on her daily life and ability to
work. The ALJ did not include Claimant’s sleep phase syndrome when posing a hypothetical to
the VE. In addition, the ALJ did not discuss Claimant’s hearing testimony, which linked her
sleep issues to her inability to work. The ALJ’s statement that “all impairments have been
adequately addressed and all medically supported restrictions of record have been incorporated
into the decision’s [RFC] assessment,” along with a few brief references to Claimant’s
complaints of difficulty sleeping, are insufficient to show that the ALJ adequately considered the
evidence of Claimant’s delayed sleep phase syndrome in his RFC analysis. [R. 24]; See Jones,
2014 WL 575457, at *12 (finding that ALJ had not properly considered Claimant’s impairment
despite some discussion and discounting of the impairment in RFC determination).
As discussed above, the ALJ’s contention at step two that Claimant’s delayed sleep phase
syndrome was controlled by medication or lacked specific complaints and functional limitations
preventing work is not supported by substantial evidence in the record, which includes regular
documentation of her difficulty sleeping throughout the relevant time period, despite medication,
and the effect of this impairment on her ability to work. Further, the ALJ did not consider
Claimant’s delayed sleep phase syndrome in his step four RFC determination. The ALJ’s
decision was thus was not supported by substantial evidence, and the case must be remanded for
additional consideration of the severity of Claimant’s delayed sleep phase syndrome at step two
and its impact on her RFC at step four.
3.

Whether the ALJ Made a Judgment on a Matter Reserved for Experts

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Claimant finally argues that the ALJ made a judgement on a matter reserved for experts
by posing a hypothetical question to the VE which included facts or findings not fairly reflected
by the record, and that the ALJ was thus not entitled to rely on the VE’s testimony. [ECF No. 17
at 15–16]. In particular, Claimant contends that the ALJ’s hypothetical described an individual
who would be allowed to shift her body position every thirty minutes without losing her focus,
and that the record does not show that Claimant was capable of shifting her body position
without losing focus. Id.
In order for an ALJ to rely upon a VE’s answer to a hypothetical question, “the inputs
into that hypothetical must correspond to conclusions that are supported by the outputs from the
medical authorities.” Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir.
1982). “[T]he hypothetical posed to a medical expert must include all of the claimant’s relevant
impairments.” Aho v. Comm’r of SSA, No. 10-40052, 2011 WL 3511518 at *7 (D. Mass. Aug.
10, 2011). Functional limitations included in the ALJ’s hypothetical must “accurately reflect[]
the objective medical findings in the record.” Lema v. Astrue, No. 09-11858, 2011 WL 1155195,
at *6 (D. Mass. Mar. 21, 2011) (quoting Haidas v. Astrue, No. 08-11274, 2010 WL 1408618, at
*5 (D. Mass. Mar. 31, 2010)). “An ALJ cannot interpret raw medical evidence to discern
functional limitations.” Aho, 2011 WL 3511518, at *7. The ALJ is nonetheless not “precluded
from rendering common-sense judgments about functional capacity based on medical findings,
as long as the [ALJ] does not overstep the bounds of a lay person’s competence and render a
medical judgment.” Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir.
1990) (holding that the Secretary was justified in making common-sense determination that
Claimant was capable of sedentary work when doctor had made no “express functional
conclusions” about Claimant’s capabilities).

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Here, the ALJ considered Claimant’s moderate difficulties in concentrating,
acknowledging in his RFC that her limitations “at different times . . . will affect her
concentration [and] attention to task.” [R. 25]. These concentration difficulties are evidenced at
multiple points in the medical record. [R. 78–79, 90, 101, 552, 690]. The record also shows that
Claimant was capable of maintaining attention for two-hour spans, and of sustaining persistence
and pace for the duration of a workday on a 40 hour per week schedule. [R. 78, 91, 102]. While
the record contains no specific discussion of Claimant’s ability to shift position without losing
focus, the ALJ was entitled to make a common-sense judgement that the Claimant, who did not
have severe physical limitations and could maintain attention, persistence and pace, would be
capable of shifting her physical position without going “off task.” The Court agrees with the
Commissioner that the ALJ’s hypothetical was supported by the medical evidence in the record,
and there was no error in assessing Claimant’s ability to shift her body position without losing
focus or in posing such a hypothetical to the VE.
V.

CONCLUSION
For the reasons stated herein, the Court finds that the ALJ’s decision was not supported

by substantial evidence and therefore DENIES the Commissioner’s motion to affirm [ECF No.
22] and GRANTS the Claimant’s motion to reverse or remand [ECF No. 16]. The decision of the
ALJ is VACATED, and the case is REMANDED for further administrative proceedings
consistent with this opinion.
SO ORDERED.
November 30, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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