Altman v. Colvin

Filing 24

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated, the Commissioner's Motion for an Order Affirming the Decision of the Commissioner - 18 is DENIED, and the Pltf's Motion for Judgmewnt on the P leadings - 16 IS DENIED in part and GRANTED IN PART. This case is REMANDED to the Appeals Council for further proceedings consistent with this opinion. (Finn, Mary) (Main Document 24 replaced on 9/1/2015 with correct dated Memorandum and Order) (Finn, Mary). Modified on 9/1/2015 (Finn, Mary).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DERRICK ALTMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

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Case No. 14-cv-30190-KAR

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION TO
REVERSE OR REMAND THE DECISION OF THE COMMISSIONER AND DEFENDANT’S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(Dkt. Nos. 16 & 18)
September 1, 2015
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

This is an action for judicial review of a final decision by the acting Commissioner of the
Social Security Administration (“the Commissioner”) regarding the plaintiff’s entitlement to
Supplemental Security Insurance (“SSI”) pursuant to 42 U.S.C. § 1383(c)(3). Plaintiff Derrick
Altman (“Plaintiff”) asserts that the Commissioner’s decision denying him such benefits –
memorialized in a May 14, 2013 decision by an administrative law judge (“ALJ”) – is in error
because the ALJ improperly failed to grant controlling weight to the opinion of Plaintiff’s mental
health care provider and failed adequately to explain what weight, if any, he assigned to other
evidence in the record. Plaintiff has moved for judgment on the pleadings, or, in the alternative,
that the Commissioner’s decision be remanded for further proceedings (Dkt. No. 16). The
Commissioner has moved for an order affirming the decision of the Commissioner on the
grounds that the ALJ’s decision is supported by substantial evidence (Dkt. No. 22).
1

The parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73. For the following reasons, the court will allow Plaintiff’s motion in part and deny the
Commissioner’s motion. The case will be remanded for further proceedings.
II.

PROCEDURAL BACKGROUND

Plaintiff applied for SSI benefits on May 6, 2011, alleging an onset of disability
beginning on April 12, 2008 (Administrative Record (“A.R.”) at 161-169). The claim was
denied initially and on reconsideration (id. at 121-124, 126). Following a hearing held by
videoconference on November 9, 2012, with Plaintiff, his attorney and the hearing monitor in
Pittsfield and the ALJ and a vocational expert in Springfield, the ALJ issued his decision finding
that Plaintiff was not disabled and denying his claim (id. at 11-24, 31). The Appeals Council
denied review (id. at 1-6). The ALJ’s decision thereby became the final decision of the
Commissioner. This appeal followed.
III.

DISCUSSION

A. Standard of review
The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for a rehearing. See 42 U.S.C. §
405(g) and 1383(c)(3). Judicial review “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). The court reviews questions of law de novo, but
must defer to the ALJ’s findings of fact if they are supported by substantial evidence. Id. (citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). “Substantial evidence is such relevant
evidence as a reasonable mind accepts as adequate to support a conclusion.” Taylor v. Astrue,
899 F. Supp. 2d 83, 84 (D. Mass. 2012) (citing Rodriguez v. Sec’y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981)). In applying the substantial evidence standard, the court must
2

be mindful that it is the province of the ALJ, and not the courts, to resolve issues of credibility,
resolve conflicts in the evidence, and draw conclusions from such evidence. See Irlanda Ortiz v.
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). So long as the substantial
evidence standard is met, the ALJ’s factual findings are conclusive even if the record “arguably
could support a different conclusion.” Id. at 770. “A denial of benefits, however, will not be
upheld if there has been an error of law in the evaluation of a particular claim.” Taylor, 899 F.
Supp. 2d at 85 (citing Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st
Cir. 1996)). The court maintains the power, in appropriate circumstances, “to enter . . . a
judgment affirming, modifying, or reversing the decision of the Commissioner” or to “remand[]
the cause for a rehearing.” 42 U.S.C. § 405(g).
B. Entitlement to SSI
Entitlement to SSI requires a showing of disability and financial need. See 42 U.S.C. §
1381a. Because the Commissioner does not challenge Plaintiff’s financial need, the sole point at
issue is whether Plaintiff is disabled within the meaning of the statute. A claimant is disabled for
purposes of SSI if he 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 which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). A claimant is unable to engage in any substantial gainful
activity when 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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if
he applied for work.” 42 U.S.C. § 423(d)(2)(A).

3

The Commissioner evaluates a claimant’s impairment under a five-step sequential
evaluation process set forth in the regulations promulgated under the statute. See 20 C.F.R. §
404.1520. The hearing officer must determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3)
whether the impairment meets or equals a listed impairment contained in Appendix 1 to the
regulations; (4) whether the impairment prevents the claimant from performing previous relevant
work; and (5) whether the impairment prevents the claimant from doing any work considering
the claimant’s age, education, and work experience. See id. See also Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the
hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the
analysis does not continue to the next step. See 20 C.F.R. § 404.1520.
Before proceeding to steps four and five, the Commissioner must make an assessment of
the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four
to determine whether the claimant can do past relevant work and at step five to determine if the
claimant can adjust to other work. See id. “RFC is an administrative assessment of the extent to
which an individual's medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling (“SSR”) 968p, 1996 WL 374184, at *2 (July 2, 1996). “Work-related mental activities generally . . . include
the abilities to: understand, carry out, and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.” Id. at *6.

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The claimant has the burden of proof through step four of the analysis. At step five, the
Commissioner has the burden of showing the existence of other jobs in the national economy
that the claimant can perform notwithstanding limitations or restrictions. Goodermote, 690 F.2d
at 7.
C. The ALJ’s decision
In determining that Plaintiff did not meet the standard for disability, the ALJ conducted
the five-part analysis required by the regulations. At the first step, the ALJ found that Plaintiff
had not engaged in substantial gainful activity since May 11, 2011, the application date (A.R. at
16). At steps two and three, the ALJ found that Plaintiff had certain severe impairments – major
depression and post-traumatic stress disorder (“PTSD”) with psychosis, primarily paranoia – but
concluded that these impairments did not meet or medically equal the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (id. at 16, 19). In particular, the
ALJ found that Plaintiff’s severe mental impairments gave rise to mild restrictions in Plaintiff’s
activities of daily living; marked difficulties in social functioning; moderate difficulties with
regard to concentration, persistence, or pace; and caused no episodes of decompensation of
extended duration (id. at 19-20). Before proceeding to step four, the ALJ found that Plaintiff had
the RFC to perform a full range of work at all exertional levels, except that, because of
drowsiness caused by his medications, he should not work at heights or around moving
machinery. He found that, due to concentration difficulties, Plaintiff should be limited to
positions involving simple one-to-two step tasks taught by demonstration with rare changes in
routine, working in relative isolation without interactions with co-workers and with only one to
two interactions with a supervisor every four hours (id. at 20). At step four, the ALJ found that
Plaintiff had no past relevant work experience (id. at 22). Finally, at step five, relying on the

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testimony of a vocational expert, the ALJ determined that Plaintiff could perform jobs that
existed in significant numbers in the regional and national economies (id. at 23). Consequently,
the ALJ deemed Plaintiff ineligible for SSI benefits (id. at 23-24).
D. Plaintiff’s contentions
Plaintiff seeks reversal or remand based on the following three related contentions: (1)
the ALJ improperly failed to give controlling weight to the opinion of his treating psychiatrist,
Ann Potter, M.D., that Plaintiff was unable to work and failed adequately to explain his reasons
for discounting her opinion; (2) the ALJ failed properly to evaluate or explain the weight he
assigned to opinion evidence from Margaret Stephenson, Ph.D., a consulting psychologist, and
he failed to explain the weight he assigned to the opinions of Richard Milan, Jr., Ph.D. and John
Gambill, M.D., each of whom completed a disability determination based on a record review;
and (3) the ALJ relied, to a degree unspecified in his opinion, on an investigative report prepared
by the Cooperative Disability Investigation Unit (“CDI Unit”) whose contents did not necessarily
contradict Plaintiff’s claims of disability based on mental impairments (Dkt. No. 17 at 8-17). 1 In
essence, these arguments amount to a single contention: the ALJ failed to give controlling
weight to opinion evidence from an acceptable treating source, and failed adequately to explain
this finding and the weight he assigned to other evidence, medical and otherwise, in the record.
For the reasons set forth below, the court agrees.

1

The CDI Unit’s primary purpose is to obtain evidence that can resolve claims of fraud before
any benefits are paid. Disability fraud includes, but is not limited to, exaggerating symptoms or
lying about disabilities. See McQuin v. Comm’r of Soc. Sec., No. 3:12-cv-1704, 2014 WL
1369674, at *9 n.7 (N.D. Ohio March 31, 2014).
6

i.

Summary of relevant medical opinion and related evidence

Plaintiff claims that he was wrongfully incarcerated after he was arrested by a North
Adams police officer engaged in racial profiling, that this experience was profoundly
traumatizing, and that he has been unable to work due to limitations caused by his mental
impairments since his release from incarceration (e.g., A.R. at 396-424). Plaintiff began treating
with psychotherapist Linda McGinley at the Brien Center in North Adams on September 15,
2010 as soon as he could obtain insurance coverage after his September 2009 release from
incarceration (id. at 268). He was diagnosed by Ms. McGinley with major depressive disorder,
PTSD, and anxiety (id. at 276). He first saw Dr. Potter in January 2011 for medication
management, when she diagnosed Plaintiff with PTSD and major mood disorder. She observed
that Plaintiff was still symptomatic and unable to work or function outside of his house (id. at
313). According to the administrative record, Dr. Potter saw Plaintiff again in July and
September 2011, then on an approximately monthly basis beginning in February 2012. She
consistently diagnosed Plaintiff with PTSD, major mood disorder with psychosis, and anxiety
(id. at 330, 339, 347-350, 353-354). She consistently observed Plaintiff’s mood to be dysphoric
and anxious or one or the other (id. at 313, 330, 331, 347, 348, 349, 353, 354).
In February 2012, Dr. Potter completed an EAEDC Medical Report in which she
represented that Plaintiff had mental health impairments that affected his ability to work and
were expected to last 6 to 12 months (id. at 338). She indicated that he was markedly limited in
his ability to sustain most mental activities associated with work during a normal workday and
workweek. She checked a box indicating he would be likely to be absent from work more than
four days during a month, and noted that it was unlikely he would be able to keep a job because
of his anxieties and that he had trouble keeping appointments, leaving his house, and traveling in

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public (id. at 339-340). In late October 2012, Dr. Potter and Ms. McGinley jointly completed a
second EAEDC Medical Report. They confirmed a diagnosis, established as of September 15,
2010, of PTSD and major mood disorder with psychosis (id. at 361). Dr. Potter and Ms.
McGinley jointly indicated that Plaintiff’s affect was depressed, tearful, and worried; that he was
unable to concentrate; that his speech was confused and slow and his thought process panicked
and ruminating and including flashbacks and racing thoughts; that his thought content was
obsessive and that he feared people were out to get him; and that he heard voices and noises,
thought people were touching him, and that someone was sending him messages in code (id. at
360). Dr. Potter, joined by Ms. McGinley, stated that Plaintiff’s impairments interfered
significantly with virtually all aspects of his daily living, and opined that Plaintiff had mental
health and cognitive impairments expected to last more than a year that made him unable to work
(id. at 362-363). Nowhere in the Brien Center records is there an indication that Plaintiff’s
treating care providers perceived him to be malingering.
At the hearing before the ALJ, Plaintiff testified that he did not want to leave the house,
was scared all the time, felt like people were sending him messages, had difficulty sleeping, was
“so depressed that people [did not] even want to talk to him,” did not like being around groups of
people, and did not think he could keep to a work schedule (id. at 46, 48-51, 55-56). Despite
being steered away from the subject by his attorney, he repeatedly returned to his arrest and its
sequel (id. at 46-47, 51, 53-54). He cried during the hearing, something he testified happened “a
lot” (id. at 53-54).
At the conclusion of the hearing, the ALJ stated that he intended to refer the case for
review by a consultative examiner (id. at 66). Plaintiff met with Margaret Stephenson, Ph.D., on
January 18, 2013. Dr. Stephenson’s report indicated a diagnosis of depressive disorder not

8

otherwise specified; anxiety disorder not otherwise specified; and alcohol abuse in remission (id.
at 436, 439). Based on testing, she scored Plaintiff in the severe impairment range with respect
to memory and in the moderate impairment range with respect to calculations. She stated that
Plaintiff might have difficulty maintaining attention and concentration and working well with
others and she assigned him a GAF score of 50 2 (id. at 438-439).
Although he did not indicate his intention to do so at the hearing, the ALJ apparently
requested an investigation by the CDI Unit following the hearing. The investigator conducted
very limited surveillance of Plaintiff (id. at 372-373). For purposes relevant to this decision, the
most significant portion of the CDI Unit report concerned the investigator’s report of her
conversation with unnamed “officials” from the North Adams police department. These
unnamed officials purportedly told the investigator that, in 2012, Plaintiff had been observed on
multiple occasions out in the general public in the company of others, including standing outside
of a package store, and had been seen intoxicated on several occasions, as well as being
belligerent and engaging in physical altercations with neighbors. According to these unidentified
officials of the North Adams police department, several people had reported to the police
department that Plaintiff was “highly intoxicated” (id. at 373-374). The investigator never spoke
with Plaintiff, his significant other, any family members, or any of his neighbors (id. at 365-435).

2

“GAF” stands for Global Assessment of Functioning, which is a numeric scale that may be
used by mental health clinicians and physicians to rate, on a subjective basis, the social,
occupational and psychological functioning of adults. See Rivera v. Astrue, 9 F. Supp. 2d 495,
496, n.1 (E.D. Pa. 2014). The most recent version of the American Psychiatric Association’s
Diagnostic and Statistical Manual no longer employs GAF scores. See Navedo v. Colvin, Civil
Action No. 14-30015-KPN, 2014 WL 6983358, at *3 n.2 (D. Mass. Dec. 9, 2014). The SSA has
nonetheless indicated that it will continue to receive into evidence and consider GAF scores.
See id. (citing SSA Administrative Memorandum 13066 (July 22, 2013)).
9

ii.

Weight of the treating physician’s opinion

“A treating source is defined by 20 C.F.R. §§ 404.1502, 416.902 as a patient’s own
physician, psychologist or other acceptable medical source who has provided medical treatment
in an ongoing way.” Ross v. Colvin, C.A. No. 13-11089-PBS, 2014 WL 587849, at *6 (D. Mass.
Feb. 14, 2014). As a physician with a long-standing treatment relationship with Plaintiff, Dr.
Potter was an “acceptable medical source” as that term is defined in the relevant regulations. See
20 C.F.R. §§ 404.1513(a) and 416.91(a). With respect to the nature and severity of a claimant’s
impairments, “[a]n administrative law judge must give controlling weight to the opinion of an
[acceptable] ‘treating source’ when that opinion is well-supported 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); see also King v. Astrue, Civil
No. 09-337-P-H, 2010 WL 4457447, at *4 (D. Me. Oct. 31, 2010). In the context of a mental
health impairment, objective findings or “’medical signs,’ see 20 C.F.R. § 404.1512(b)(1), are
defined, in relevant part, as ‘psychological abnormalities which can be observed’ and which ‘can
be medically described and evaluated.’ Id. § 404.1528(b). Such abnormalities, in turn, include
‘abnormalities of behavior, mood, thought, memory, orientation, development, or perception.’
Id.” Polanco-Quinones v. Astrue, 477 Fed. Appx. 745, 747 (1st Cir. 2012) (unpublished).
The ALJ acknowledged that Dr. Potter was an acceptable treating source. He claimed to
give her opinions “significant, but not controlling probative weight” because, according to the
ALJ, Dr. Potter’s opinions were inconsistent with the longitudinal history, as set out by the ALJ,
and with an observation made by a staff member in the SSA field office; were inconsistent with
an ability on Plaintiff’s part to have drafted a 29-page “journal” describing the effects of his
allegedly illegal incarceration; were based on Plaintiff’s subjective assertions which, according

10

to the ALJ, were not borne out by mental status examination findings in the medical records;
were brought into question by observations of North Adams police officers interviewed by an
investigator from the CDI Unit; and were offered on a form provided by Plaintiff’s lawyer,
which purportedly amounted to a two-page checklist containing “scant analysis.” The ALJ
prefaced his reservations about the treating source’s opinions by noting that they were “solicited
to accommodate [Plaintiff’s benefits] application” (A.R. at 21-22).
The ALJ’s reasons for declining to give controlling weight to Dr. Potter’s opinion do not
stand up to scrutiny. First, it would be legal error for the ALJ to reduce the weight he assigned to
Dr. Potter’s reports because they were “solicited to accommodate this application” (id. at 21).
See Arroyo v. Barnhart, 295 F. Supp. 2d 214, 220-221 (D. Mass. 2003). The ALJ presumably
would not have made the comment if he did not consider the fact significant. He did not explain
to what degree he allowed this impermissible factor to influence his decision to discount the
weight he assigned to Dr. Potter’s opinions. Second, while the ALJ stated that he declined to
give controlling weight to the treating source opinion evidence because it was inconsistent with
the “longitudinal history” (A.R. at 21), the ALJ’s longitudinal history is drawn, with minor
exceptions, from Plaintiff’s treatment records at the Brien Center, in which Plaintiff is
consistently diagnosed with PTSD and major mood disorder with psychosis, and generally
observed to be functioning very poorly. “It is . . . difficult for the court to understand how the
opinions of the treating physician, whose long history with the claimant is demonstrated by the
record, is contradictory to that record.” Arroyo, 295 F. Supp. 2d at 222. That an unidentified
member of SSA Field Office staff member observed, on a single occasion, that Plaintiff was
neat, polite, and cooperative cannot carry significant weight. One comment in a record –
particularly from an unidentified non-medical source – is not substantial evidence that would

11

justify discounting the weight assigned to opinion evidence from an acceptable treating source.
See Bouvier v. Astrue, 923 F. Supp. 2d 336, 350 (D.R.I. 2013) (single comment that claimant
was doing “well” insufficient to undermine treating source opinion). Third, as a lay person, the
ALJ was not qualified to determine whether the contents of Plaintiff’s 29-page journal
addressing the traumatic impact of his arrest and imprisonment were inconsistent with Dr.
Potter’s opinions about Plaintiff’s mental impairments and the resulting limitations on his ability
to work. See Nguyen, 172 F.3d at 35 (as lay person, ALJ was not qualified to interpret raw
medical data in functional terms). A lay person might equally conclude that the journal was
wholly consistent with abnormalities of behavior, mood, thought, memory, orientation,
development, or perception documented by Dr. Potter: the document appears obsessive,
paranoid, perseverative, and angry (A.R. at 396-424, 360-362). Fourth, Dr. Potter’s observations
and opinions about Plaintiff’s mental health impairments were based on psychological
abnormalities which she (and Ms. McGinley) observed, and which they medically described and
evaluated. See 20 C.F.R. § 404.1512(b)(1). The ALJ committed legal error in discounting Dr.
Potter’s observations and opinions because they were, in his view, based on Plaintiff’s
“subjective assertions” (A.R. at 22). See Polanca-Quinones, 477 Fed. Appx. at 746-747
(Commissioner “wrong” that psychiatrist’s report lacked objective findings where psychiatrist
completed forms identifying signs and symptoms such as generalized anxiety, persistent
disturbances of mood or affect, decreased energy, difficulty thinking, and memory impairment).
Fifth, while it is the ALJ’s province to weigh conflicts in the evidence, see, e.g., Irlanda-Ortiz,
955 F.2d at 769, in the unusual circumstances of this case, where criminal charges brought
against Plaintiff based on an arrest by the North Adams police department were dismissed prior
to trial, plaintiff had sued the department for racial profiling, and his claim of being targeted by

12

the department was given some credence by Margaret Stephenson, Ph.D., who performed a
consultative examination at the ALJ’s request, 3 the ALJ should have been cautious about relying
on this source as a basis for discounting the weight he assigned to Dr. Potter’s opinion evidence.
Furthermore, while the hearsay information from the North Adams police department might, if
credited, cast doubt on Plaintiff’s claims of sobriety, it was not inconsistent with the
abnormalities of behavior, mood, thought, memory, orientation, development, or perception
observed by Dr. Potter (and Ms. McGinley) or the work limitations Dr. Potter ascribed to
Plaintiff. Finally, viewed in its entirety, Dr. Potter’s opinion evidence was not offered in the
form of a checklist with scant analysis (A.R. 338-340, 360-363).
Moreover, “[w]hile the ALJ . . . stated the weight he gave to [Dr. Potter’s] opinion –
namely, ‘significant’ weight – he did not sufficiently explain himself and the court has some
difficulty following his reasoning.” Taylor, 899 F. Supp. 2d at 89. At step two of the ALJ’s
analysis, despite having purportedly accorded Dr. Potter’s opinion evidence “significant” weight
(A.R. at 19), the ALJ found that Plaintiff had only mild restrictions in his activities of daily
living, a finding that cannot easily be reconciled with Dr. Potter’s opinions about the effect of
Plaintiff’s mental impairments on his activities of daily living (id. at 362). It appears that the
ALJ’s RFC reflected Dr. Potter’s diagnoses of major mood disorder with psychosis and paranoia,
in that he acknowledged Plaintiff’s concentration difficulties by limiting him to simple and
routine one to two step tasks taught by demonstration, and to positions that could be performed
in relative isolation (id. at 20). The ALJ did not, however, address Dr. Potter’s opinion that
3

Plaintiff told Dr. Stephenson that he believed he was a target of the police, who had the power
to harm him by actions such as planting drugs on him. He reported fearing that the police would
either hurt him or set him up to incarcerate him, and told Dr. Stephenson that the police drove
past his house very slowly every day. His significant other, who attended his appointment with
Dr. Stephenson, confirmed that the police regularly patrolled past the house (A.R. at 437-438).
13

Plaintiff’s anxiety issues would result in absences from work at a frequency that, the vocational
expert testified, would eliminate Plaintiff’s ability to engage in substantial gainful activity (id. at
64, 340), nor did he adequately address her opinion that Plaintiff’s level of distraction would
cause him to be markedly limited in his ability to maintain attention and concentration for
extended periods (id. at 339). The vocational expert testified that if distraction caused an
individual to be off task 25% of the time, that person also would not be able to engage in
substantial gainful activity. “[A]lthough an ALJ need not adopt all or any part of a particular
provider’s report, he must state his reasons for adopting only a portion of it.” Kenerson v.
Astrue, No. 10-cv-161-SM, 2011 WL 1981609, at *5, n.7 (D.N.H. May 20, 2011) (citing Rawson
v. Astrue, Civil No. 09-469-BW, 2010 WL 2923902, at *2 (D. Me. July 19, 2010)). Lacking an
adequate explanation from the ALJ about his treatment of opinion evidence from an acceptable
treating source, this court cannot meaningfully review the ALJ’s decision. See Snow v. Astrue,
No. 10-cv-609-SM, 2011 WL 4828685, at *4 (Oct. 12, 2011).
iii.

The ALJ’s treatment of other evidence in the record

The difficulty caused by the ALJ’s failure adequately to explain his consideration and
treatment of Dr. Potter’s opinion evidence is compounded by his failure to explain what weight
he assigned to other evidence in the record. At the conclusion of the hearing, the ALJ stated that
he intended to request a psychological examination by a consultative examiner (A.R. at 66).
Plaintiff met with Dr. Stephenson on January 18, 2013 and her report was prepared on or around
February 10, 2013 (id. at 436). To be sure, Dr. Stephenson’s report is somewhat inconclusive. It
is nonetheless significant in providing support for Dr. Potter’s opinion insomuch as Dr.
Stephenson concluded that Plaintiff might “have difficulty in maintaining attention and
concentration and working well with others at this time” and assigned him a GAF score of 50,

14

which reflects a clinical, albeit subjective, judgment of “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or . . . serious impairments in social,
occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).”
Diagnostic and Statistical Manual of Mental Disorders 34 (American Psych. Assoc. 4th ed. 2000).
GAF scores are not necessarily reliable and the court is not suggesting that the GAF score
assigned by Dr. Stephenson compelled a conclusion of disability based on mental impairment.
See Hall v. Colvin, 18 F. Supp. 2d 144, 153 (D.R.I. 2014). 4 Here, however, the GAF score
clarifies, to some degree, that Dr. Stephenson, the consultative examiner, had serious
reservations about Plaintiff’s ability to work, and, in this respect, Dr. Stephenson’s opinion is
consistent with the opinion evidence of the acceptable treating source (A.R. at 438-439). The
ALJ’s decision completely fails to explain what weight, if any, he assigned to the consultative
examination report that resulted from an examination he requested be performed (id. at 66-67).
The ALJ’s decision quoted extensively from reports prepared after record reviews by
state agency medical consultants, raising an inference that they carried some significant measure
of weight in his decision. He apparently adopted the assessment of one of them, John Gambrill,
M.D., that Plaintiff had mild restrictions in activities of daily living (A.R. at 18-19). Again, the
ALJ failed to explain what weight he assigned to these reports. He merely noted that
“consideration had been given” to these reports and that “[i]t is noted that in reaching . . .
conclusions regarding the severity of the claimant’s impairments and the resulting limitation in
his functioning, the medical source opinions by state medical examiners have been considered”
4

It is noteworthy that the ALJ included an earlier GAF score of 60 in his longitudinal analysis –
in italics – and ignored the GAF score of 50 subsequently assigned by the consultative examiner
(A.R. at 17). There is some merit to Plaintiff’s accusation of “cherry picking” by the ALJ (Dkt.
No. 17 at 10). It is well-settled that an ALJ may not pick and choose only the evidence that
supports his position. See, e.g., McQuin, 2014 WL 1369674, at *4.
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(id. at 18, 22). “Reliance on a non-treating, consulting examiner’s opinion is disfavored where
the consultant does not have an expert report in the record” and where the consulting examiner
does not have access to the more comprehensive information that was available to the treating
source. Ross, 2014 WL 587849, at *7. Both state agency consulting examiners prepared their
reports in 2011 (one in August and one in November) before Dr. Potter offered her opinions in
February and October of 2012 (A.R. at 18, 340, 363). “The adoption of evaluations made by
non-examining physicians, who evaluate medical evidence for a state agency, over that of a
treating physician should be looked on with disfavor.” Conte v. McMahon, 472 F. Supp. 2d 39,
49 (D. Mass. 2007). Here, the court has no basis on which to evaluate the ALJ’s treatment of the
former vis-à-vis the latter because the ALJ has failed to explain to what degree he credited the
reviewing physician reports and what weight he assigned to them. Cf. id.
Nor has the ALJ explained the weight he assigned to the contents of the CDI Unit report. 5
“[A] CDI investigation may be appropriate in certain circumstances,” Robert v. Astrue, 688 F.
Supp. 2d 29, 37 (D. Mass. 2010). “[T]o the extent a [CDI] report provides factual rather than
interpretive data, and to the extent the [ALJ] provides the claimant with an opportunity to
address the report . . . the report may be given appropriate weight based on all the
circumstances.” Id. at 38 (internal citation omitted). Plaintiff’s representative was notified of
the report after the hearing, and chose not to request a supplemental hearing or propound
interrogatories to address its contents (A.R. at 259). He reasoned that, to the extent the report

5

It was presumably the ALJ who referred Plaintiff’s case to the CDI Unit for investigation. The
reasons given in the report for the investigation were a “[q]uestion of malingering” (A.R. at 366),
and “inconsistencies in the medical evidence and [Plaintiff’s] activities of daily living” (id. at
368). Plaintiff’s treating care providers never suggested that he was malingering and the
purported inconsistencies in the medical evidence and Plaintiff’s activities of daily living are not
apparent to the court.
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contained factual data it either supported Plaintiff’s contentions – because the investigator’s
(very limited) observations of Plaintiff’s conduct revealed no inconsistencies between the
medical evidence and Plaintiff’s hearing testimony on the one hand and the investigator’s
observations on the other – or could not be verified or clarified because it came from unidentified
sources (A.R. at 260-261). Indeed, neither the police “officials” with whom the investigator
spoke, nor the third parties who allegedly provided information to the police department were
identified in the report (id. at 373-374).
In footnote 2 in the ALJ’s decision, he referred to the information about Plaintiff’s
alleged public intoxication as hearsay that would require much more surveillance before it could
be credited because of the third hand nature of the information (id. at 17). Nonetheless, the ALJ
apparently relied on this same evidence to discredit Plaintiff’s testimony and his reports about his
condition to his treating providers (id. at 19). The ALJ’s apparently inconsistent treatment of the
CDI Unit report is confusing. Moreover, although the report was, somewhat after the fact,
disclosed to Plaintiff, the report’s reliance on information from undisclosed sources (unidentified
police officials and third parties who purportedly provided information to the police department)
raises due process concerns that the ALJ may not have fully appreciated. See Hinck v. Colvin,
Civil Action No. 13-1389-JWL, 2015 WL 859082, at *3 (D. Kan. Feb. 27, 2105) (violation of
due process for ALJ to consider contents of CDI Unit report that claimant cannot refute or
otherwise respond to). Because of the unverified and unverifiable nature of the information in
the CDI Unit report, and the fact that the information that the ALJ apparently considered in his
credibility determination came from the North Adams police department, an organization with
which Plaintiff had an actively antagonistic relationship, the report cannot, in the court’s view,
be treated as substantial evidence that a reasonable mind could accept as adequate to support a

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finding about Plaintiff’s credibility that would, in turn, reflect on the reliability of opinion
evidence from a treating source. See Knox v. Astrue, 660 F. Supp. 2d 790, 814 (S.D. Tex. 2009)
(even where investigators spoke with plaintiff, CDI Unit investigators’ report about plaintiff’s
communicative abilities not sufficient to support ALJ’s rejection of medical evidence of
cognitive impairments); cf. Taylor, 899 F. Supp. 2d at 90 (ALJ’s evaluation of other source
opinion evidence inadequate where ALJ relied on second hand observations of physicians
treating Plaintiff for physical rather than mental impairments).
In sum, the court finds that the ALJ erred as a matter of law by failing to provide an
adequate explanation for according Dr. Potter’s opinion evidence less than controlling weight as
to the nature and extent of Plaintiff’s impairments, and by failing to explain what weight, if any,
he assigned to other evidence in the record. The errors in this case are material in that they may
have affected its outcome. See Taylor, 899 F. Supp. 2d at 90; Snow, 2011 WL 4828656, at *5.
In these circumstances, Plaintiff is entitled to a remand to the Appeals Council pursuant to
sentence four of 42 U.S.C. § 405(g). See Snow, 2011 WL 4828656, at *5 (citing Seavey v.
Barnhart, 276 F.3d 1, 10, 12 (1st Cir. 2001) (remand to allow ALJ to correct errors is warranted
where ALJ provided insufficient explanation of his decision)); see also Simpson v. Colvin, 2 F.
Supp. 2d 81, 92 (D. Mass. 2014) (remanding case to Appeals Council pursuant to 42 U.S.C. §
405(g) when ALJ failed adequately to explain his decision).
IV.

CONCLUSION

For the reasons stated above, the Commissioner’s motion for an order affirming the
decision (Dkt. No. 18) is DENIED, and Plaintiff’s motion for judgment on the pleadings (Dkt.
No. 16) IS DENIED in part and GRANTED in part. This case is REMANDED to the Appeals
Council for further proceedings consistent with this opinion.

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It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge

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