Scanlon v. US Social Security Administration, Acting Commissioner

Filing 13

///ORDER granting 7 Motion to Reverse Decision of Commissioner; denying 11 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bryan L. Scanlon
v.

Civil No. 13-cv-96-JL
Opinion No. 2014 DNH 058

Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Bryan Scanlon appeals the Social Security Administration’s
(“SSA”) denial of his applications for a period of disability and
disability insurance benefits.

An administrative law judge at

the SSA (“ALJ”) ruled that, despite Scanlon’s degenerative disc
disease and post-surgery knee impairment, he retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and is therefore not
disabled.

See 20 C.F.R. § 404.1505(a).

The Appeals Council

later denied Scanlon’s request for review of the ALJ’s decision,
see id. § 404.967, with the result that the ALJ’s decision became
the SSA’s final decision on Scanlon’s applications, see id.
§ 404.981.

Scanlon then appealed the decision to this court,

which has jurisdiction under 42 U.S.C. § 405(g) (Social
Security).
Scanlon has filed a motion to reverse the decision, see L.R.
9.1(b)(1), arguing, among other things, that the ALJ’s RFC

finding is not supported by substantial evidence.

The

Commissioner of the SSA maintains that the ALJ’s RFC finding is
supported by the opinion of a state agency medical consultant,
and has cross-moved for an order affirming the decision.
L.R. 9.1(d).

See

After careful consideration, the court concludes

that although the possibility exists that the ALJ relied on the
opinion of the state agency consultant in reaching his decision,
whether the ALJ in fact did so is not apparent from the record,
and this court cannot assume that he did.

As this opinion is the

sole ground on which the Commissioner defends the ALJ’s decision,
the court grants Scanlon’s motion to reverse (and denies the
Commissioner’s motion to affirm) that decision.
In concluding that Scanlon was not disabled, the ALJ found
that, through his date last insured, Scanlon retained the RFC “to
perform light work as defined in 20 C.F.R. § 404.1567(b) except
he was limited to unskilled work.”

Admin. R. at 7.

It is clear,

then, that the ALJ believed that Scanlon’s impairments imposed
some limitations on his ability to physically exert himself.

Yet

how the ALJ arrived at the conclusion that, with these
limitations, Scanlon was capable of performing light work--as
opposed to sedentary work, or even, for that matter, medium or
heavy work–-is not apparent from the ALJ’s written decision.
While the decision contains a thorough discussion of some of the

2

medical evidence in the record, it does not appear that any of
that evidence indicates or establishes that Scanlon can perform
only light work (and the Commissioner does not claim that it
does).

To the contrary, the only medical opinion regarding

Scanlon’s ability to perform work-related tasks as of his date
last insured that the ALJ discusses in the written decision
asserts that Scanlon has the ability to do sedentary work at
most.

See id. at 671-74.

While the ALJ did not credit this

opinion for various reasons,1 it does not follow from his
rejection of it that Scanlon, though limited by his impairments,
can nevertheless do light work.
In an effort to reinforce the ALJ’s finding as to Scanlon’s
RFC, the Commissioner points to the opinion of John Sadler, MD,
the state agency consultant mentioned above.

1

Dr. Sadler opined

Scanlon has also argued that the ALJ erred in rejecting
this opinion, which is that of his treating physician, Mark
Richard, MD. Contrary to Scanlon’s argument, though, the ALJ
articulated persuasive reasons, grounded in the evidence of
record, for his determination that Dr. Richard’s opinion was
entitled to “little weight due to its lack of consistency with
his own treatment notes and its lack of support in the medical
record in general.” Admin. R. at 24. Because this case must be
remanded to the ALJ for other reasons, the court sees little
utility in explaining this conclusion in greater detail. Scanlon
is more than welcome to try to persuade the ALJ on remand that
Dr. Richard’s opinion is entitled to more weight. (Similarly,
while the court is not convinced by Scanlon’s argument that the
ALJ should have consulted a medical expert to establish the onset
date of Scanlon’s disability, since the ALJ did not conclude that
he is or ever was disabled, Scanlon is free to renew that
argument before the ALJ.)
3

that, as of Scanlon’s date last insured, he was able to lift up
to 20 pounds occasionally and up to 10 pounds frequently, could
stand and/or walk about 6 hours in an 8-hour workday, could sit
about 6 hours in an 8-hour workday, and had an unlimited ability
to push and/or pull.

See Admin. R. at 74.

are consistent with light work.

These restrictions

See 20 C.F.R. § 404.1567(b).

The problem, as the Commissioner concedes, is that the ALJ
did not discuss, quote, or even cite Dr. Sadler’s opinion in his
written decision.

In the Commissioner’s view, though, that

omission is irrelevant because the ALJ’s reliance on Dr. Sadler’s
opinion “is evident from the administrative record.”
Supp. of Mot. to Affirm (document no. 11-1) at 2.

Memo. in

In support of

this assertion, the Commissioner notes that:
•

the ALJ stated in his written decision that he had
“considered opinion evidence in accordance with the
requirements of 20 C.F.R. 404.1527 and [Social Security
Rulings] 96-2p, 96-5p, 96-6p and 06-3p,” Admin. R. at 17,
which direct ALJs to consider the opinions of state agency
consultants like Dr. Sadler;

•

the ALJ briefly discussed Dr. Sadler’s opinion with
Scanlon’s counsel at the outset of the administrative
hearing, when counsel noted that the record contained no
evidence disclosing Dr. Sadler’s area of expertise and
objected to the opinion on that basis; and

•

there are no other functional assessments in the record that
indicate that Scanlon can perform light work.

None of these facts justifies the inference that the Commissioner
urges, i.e., that Dr. Sadler’s opinion served as the basis for

4

the ALJ’s RFC assessment.

The ALJ’s reference to the governing

regulations and rulings is boilerplate that, in this court’s
experience, appears with some frequency in ALJs’ written
decisions, and does not demonstrate that the ALJ actually
considered Dr. Sadler’s opinion.

The ALJ’s brief exchange with

Scanlon’s counsel about the opinion is similarly insignificant;
it demonstrates only the ALJ’s passing awareness of Dr. Sadler’s
opinion, not the ALJ’s reliance upon it.2

And while it is

certainly possible to infer that the ALJ must have relied upon
Dr. Sadler’s opinion based upon the dearth of other opinions that
Scanlon could perform light work in the record, that is not the
only plausible explanation; it is equally likely that–-as Scanlon
charges–-the ALJ simply drew his own conclusions from the raw
medical data.

That, of course, is strictly verboten.3

See,

e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (noting
that as lay persons, ALJs are “simply not qualified to interpret

2

Indeed, the most reasonable inference to be drawn from the
ALJ’s omission of any reference to Dr. Sadler’s opinion from his
written decision is that the ALJ had sustained Scanlon’s
objection to the opinion and not considered it.
3

As Scanlon (to his credit) notes, “an ALJ permissibly can
render a common sense judgment about functional capacity even
without a physician’s assessment” where “the medical evidence
shows relatively little physical impairment,” Manso-Pizarro v.
Sec’y of HHS, 76F.3d 15, 17 (1st Cir. 1996), but the Commissioner
has not argued that this is such a case.
5

raw medical data in functional terms” and citing cases to that
effect).
Contrary to the Commissioner’s argument, then, it is hardly
“plain on the face of the record” that the ALJ relied upon Dr.
Sadler’s opinion in assessing Scanlon’s RFC, such that remand
would “amount to no more than an empty exercise.”

See Memo. in

Supp. of Mot. to Affirm (document no. 11-1) at 3-4 (citing Ward
v. Comm’r of Soc. Sec., 211 F.3d 652 (1st Cir. 2000); Shaw v.
Sec’y of HHS, 25 F.3d 1037 (1st Cir. 1994) (unpublished)).

In

defending the ALJ’s decision, the Commissioner does not identify
anything else in the record to support the ALJ’s finding that
Scanlon was capable of performing light work through his date
last insured.

Accordingly, Scanlon’s motion to reverse the ALJ’s

decision4 is GRANTED, the Commissioner’s motion to affirm it5 is
DENIED, and the case is remanded to the ALJ.
§ 405(g).

See 42 U.S.C.

On remand, the ALJ should clearly state the

evidentiary basis for his finding as to Scanlon’s RFC; if he
relies upon Dr. Sadler’s opinion, the ALJ should, consistent with
20 C.F.R. § 404.1527, explain the weight he has accorded that

4

Document no. 7.

5

Document no. 11.
6

opinion and the reasons for that allocation of weight.

The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: March 20, 2014
cc:

Jeffry A. Schapira, Esq.
Robert J. Rabuck, Esq.

7