Martinez v. US Social Security Administration, Acting Commissioner

Filing 17

///ORDER granting 10 Motion to Reverse Decision of Commissioner; denying 14 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Luis Martinez
v.

Civil No. 13-cv-144-LM
Opinion No. 2014 DNH 051

Carolyn W. Colvin, Acting
Commissioner, Social Security
Administration

O R D E R
Pursuant to 42 U.S.C. § 405(g), Luis Martinez moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act, 42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI, 42 U.S.C. § 1382.

The Acting Commissioner, in turn, moves

for an order affirming her decision.

For the reasons that

follow, this matter is remanded to the Acting Commissioner for
further proceedings consistent with this order.

Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §
405(g) as the standard of review for SSI decisions).

However,

the court “must uphold a denial of social security . . .
benefits unless ‘the [Commissioner] has committed a legal or
factual error in evaluating a particular claim.’”

Manso-Pizarro

v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (quoting
Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Commissioner’s
findings of fact be supported by substantial evidence, “[t]he
substantial evidence test applies not only to findings of basic
evidentiary facts, but also to inferences and conclusions drawn
from such facts.”

Alexandrou v. Sullivan, 764 F. Supp. 916,

917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727,
730 (2d Cir. 1966)).

In turn, “[s]ubstantial evidence is ‘more

than [a] mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a
conclusion.’”

Currier v. Sec’y of HEW, 612 F.2d 594, 597 (1st

Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401

2

(1971)).

But, “[i]t is the responsibility of the [Commissioner]

to determine issues of credibility and to draw inferences from
the record evidence.

Indeed, the resolution of conflicts in the

evidence is for the [Commissioner], not the courts.”

Irlanda

Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir 1991)
(citations omitted).

Moreover, the court “must uphold the

[Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.”
535 (1st Cir. 1988).

Tsarelka v. Sec’y of HHS, 842 F.2d 529,
Finally, when determining whether the

decision of the Acting Commissioner is supported by substantial
evidence, this court must “review[] the evidence in the record
as a whole.”

Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez

v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).

Background
The parties have submitted a Joint Statement of Material
Facts, document no. 16.

That statement is part of the court’s

record and will be summarized here, rather than repeated in
full.
Martinez last worked in 2007.

Up until that time, his work

experience consisted of furniture refinishing, plastic molding,

3

and shipping and receiving fruit.
English.

He cannot read or write in

He has received treatment for both physical and mental

conditions, but because the ALJ’s handling of Martinez’s mental
condition is sufficient to warrant a remand, the court does not
describe his physical conditions in this order.
The earliest record of Martinez’s mental condition comes
from a psychiatric evaluation conducted by Dr. Phillip Santora
in November of 2008.
15.

See Administrative Transcript (“Tr.”) 411-

Based upon Martinez’s history and the results of a mental

status examination, Dr. Santora diagnosed Martinez with, among
other things: (1) major depressive disorder; (2) panic disorder
with agoraphobia; (3) moderate to severe psychological and
environmental problems; and (4) a GAF of 45.1

1

GAF stands for Global Assessment of Functioning. See
American Psychological Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV-TR) (4th ed. 2000) 27. “A
GAF score represents ‘the clinician’s judgment of the
individual’s overall level of functioning.’” Nickerson v.
Astrue, No. 1:11–cv–87–GZS, 2012 WL 975641, at *2 n.2 (D. Me.
Mar. 21, 2012) (quoting DSM–VI–TR, supra, at 32). “The GAF
scale ranges from 100 (superior functioning) to 1 (persistent
danger of severely hurting self or others, persistent inability
to maintain minimal personal hygiene, or serious suicidal act
with clear expectation of death).” Nickerson, 2012 WL 975641,
at *2 n.2 (citation omitted). A GAF score of 41 to 50
indicates: “Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).” DSM–IV–TR, supra, at 34
(emphasis in the original).
4

Tr. 413-14.

After he performed the psychiatric evaluation

described above, Dr. Santora began to treat Martinez.

That

treatment appears to have been limited to medication, including
Celexa (an antidepressant2) and Diazepam (an antianxiety
medication3).
In June of 2009, after having treated Martinez for
approximately seven months, Dr. Santora completed a Mental
Impairment Questionnaire on Martinez.

See Tr. 405-10.

In it,

he: (1) repeated the diagnosis he gave Martinez in November of
2008; (2) reported the following clinical findings: “dep[ressed]
mood, fatigue, anxiety, panic attacks, insomnia,” Tr. 405; (3)
gave a prognosis of “guarded,” id.; and (4) identified the
following signs and symptoms: appetite disturbance with weight
loss, decreased energy, somatization4 unexplained by organic
disturbance, mood disturbance, difficulty thinking or
concentrating, psychomotor retardation, persistent disturbances
of mood or affect, emotional withdrawal or isolation,
2

See Dorland’s Illustrated Medical Dictionary (31st ed.
2007) 317, 372.
3

See Dorland’s, supra note 2, at 519.

4

Somatization is “[t]he process by which psychological
needs are expressed in physical symptoms; e.g., the expression
or conversion into physical symptoms of anxiety . . . .”
Stedman’s Medical Dictionary (28th ed. 1006) 1788.
5

unrealistic interpretation of physical signs or sensations
associated with the preoccupation or belief that one has a
serious disease or injury, memory impairment, and recurrent
severe panic attacks manifested by a sudden unpredictable onset
of intense apprehension, fear, terror and sense of impending
doom occurring on the average of at least once a week.
Based upon those signs and symptoms, Dr. Santora opined
that: (1) with respect to mental abilities and aptitudes to do
unskilled work, Martinez was seriously limited but not precluded
in seven areas and unable to meet competitive standards in nine
others; (2) with respect to abilities and aptitudes for
semiskilled and skilled work, Martinez was seriously limited but
not precluded in one area and unable to meet competitive
standards on four others; and (3) with respect to abilities and
aptitudes for particular types of jobs, Martinez was very good
in one area, limited but satisfactory in one area, and seriously
limited but not precluded in three others.

In the realm of

functional limitations, Dr. Santora determined that Martinez had
marked restrictions in his activities of daily living, marked
difficulties in maintaining social functioning, marked
difficulties in maintaining concentration, persistence, or pace,
and had had one or two episodes of decompensation, within a

6

twelve-month period, each of which lasted for at least two
weeks.
Dr. Santora further opined that Martinez had: (1) a
medically documented history of affective disorder, of at least
two years’ duration, that has caused more than a minimal
limitation of his ability to do any basic work activity; (2) a
residual disease process that has resulted in adjustment so
marginal that even a minimal increase in mental demands or a
minimal change in the environment would be predicted to cause
him to decompensate; and (3) a current history of inability, for
one or more years, to function outside of a highly supportive
living arrangement, with an indication of a continued need for
such an arrangement.

Dr. Santora’s questionnaire concludes with

two more relevant opinions: (1) Martinez has an anxiety-related
disorder and a complete inability to function outside his home;
and (2) his impairment or treatment would cause him to be absent
from work for more than four days per month, which is the
highest degree of absenteeism listed in the questionnaire.
Martinez first filed for DIB and SSI benefits in 2007.

He

received an unfavorable decision from Administrative Law Judge
(“ALJ”) Sutker.

Among other things, she found that Martinez’s

affective disorder and his anxiety disorder were severe

7

impairments, but not sufficiently severe to qualify as “listed
impairments” under the applicable Social Security regulations.
Martinez appealed the ALJ’s decision to this court, which
granted the Commissioner’s assented-to motion to remand the
case.

Upon remand, the case was to

be assigned to an administrative law judge (“ALJ”),
who [was to]: (1) reevaluate the severity of
Plaintiff’s . . . mental impairment[]; (2) provide a
rational for [her] findings regarding Plaintiff’s
degree of limitation in each of the “paragraph B”
criteria of mental functioning; (3) reassess the
treating source opinion of Dr. Santora; and (4)
further evaluate the credibility of Plaintiff’s
alleged mental limitations.
Tr. 601.

In its order remanding the case to ALJ Sutker, the

Decision Review Board (“DRB”) had this to say about her
treatment of Martinez’s mental impairments:
The decision does not contain an adequate evaluation
of the claimant’s mental impairment(s) in accordance
with the provisions set forth in 20 CFR 404.1520a and
416.920a. The decision (Tr. 10) indicates that the
claimant has a mild restriction in activities of daily
living; moderate difficulties in social functioning;
moderate difficulties maintaining concentration,
persistence, or pace; and no episodes of deterioration
or decompensation. However, the Administrative Law
Judge did not provide any rationale for these
conclusions. In addition, the decision (Tr. 12-13)
did not accord the opinions provided by Phillip
Santora, M.D., (Tr. 405-410) significant weight
finding them not supported by his treatment notes.
However, Dr. Santora’s report is the only opinion
evidence of record regarding the claimant’s mental
impairments. The decision did not provide adequate
rationale to support the limited weight accorded these

8

opinions. Moreover, Dr. Santora assigned a Global
Assessment of Functioning (GAF) scale rating of 45
(Tr. 414) which could indicate a serious impairment in
social and occupational functioning (Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994).
Further evaluation is necessary.
Tr. 607.

The DRB followed up that discussion by directing the

ALJ to do the following:
Further evaluate the claimant’s mental impairments in
accordance with the special technique described in 20
CFR 404.1520a and 416.920a, documenting application of
the technique in the decision by providing specific
findings and appropriate rationale for each of the
functional areas described in 20 CFR 404.1520a(c) and
416.90a(c).
. . . .
Give further consideration to the claimant’s maximum
residual functional capacity during the entire period
at issue and provide rationale with specific
references to evidence of record in support of
assessed limitations (Social Security Ruling 96-8p).
In so doing, evaluate the treating and examining
source opinions pursuant to the provisions of 20 CFR
404.1527 and 416.927 and Social Security Rulings 96-2p
and 96-5p and non-examining source opinions in
accordance with the provisions of 20 CFR 1527(f) and
416.927(f) and Social Security Ruling 96-6p, and
explain the weight given to such opinion evidence. As
appropriate, the Administrate Law Judge may request
the treating and examining sources to provide
additional evidence and/or further clarification of
the opinions and medical source statements about what
the claimant can still do despite the impairments (20
CFR 404.1512 and 416.912). The Administrative Law
Judge may enlist the aid and cooperation of the
claimant’s representative in developing evidence from
the claimant’s treating sources.
Tr. 608.

9

In response to the DRB’s remand order, the ALJ conducted a
hearing during which she took telephonic testimony from Dr.
Carolynn Kapacoff, a psychologist.

Dr. Kapacoff had neither

treated Martinez nor examined him.

Rather, her testimony was

based solely upon a “few records concerning emotional or mental
disorders” which she characterized as being “of poor quality.”
Tr. 558.

When the ALJ asked Dr. Kapacoff whether she “had

sufficient medical evidence to establish the presence of a
medically determinable [mental] impairment,” Tr. 557, she
responded, “[n]o,” id.; see also id. at 557-58.

Later on, the

following exchange took place between Dr. Kapacoff and
Martinez’s counsel:
Q Doctor, if you just look at Exhibits 21F and 20F Dr.
Santora lists signs and symptoms, and he describes his
clinical findings, and he lists the DSM-IV of axes
just within those two documents, you don’t think
there’s enough information to support a diagnosis, a
mental diagnosis?
A I feel that there’s enough for a diagnosis at that
discreet time, I cannot speak for what is happening
with the patient now.
Q I have one last question, doctor, in order to
determine whether or not Mr. Martinez has a mental
impairment at this time does he need to undergo a
psychological or psychiatric evaluation?
A Yes or engage in treatments with another licensed
mental health provider, a psychologist or a
psychiatrist who could assess and also track progress.

10

Tr. 567.

Dr. Kapacoff further opined that, in her view, Dr.

Santora’s opinions were not adequately supported by the amount
of treatment that was documented in his records.

But, while she

testified about the infrequency of Dr. Santora’s treatment, Dr.
Kapacoff gave no opinion of her own as to Martinez’s ability to
perform work-related activities.

Thus, at the time the ALJ

issued her second decision in this case, the record contained
only one medical-source opinion regarding Martinez’s mental
impairments, just as it had when the DRB issued its remand
order.
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine and
obesity (20 CFR 404.1520(c) and 416.920(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
and 416.926).
. . . .
5. 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) and 416.967(b) except the claimant can
lift and carry twenty pounds occasionally and ten

11

pounds frequently; he can walk for forty five minutes
at one time and stand for forty five minutes at one
time, but total standing and walking is limited to two
hours in an eight-hour workday; and he can sit for six
hours in an eight-hour workday. The claimant must
avoid climbing ladders, ropes and scaffolds. He must
avoid work at unprotected heights. He is limited to
uncomplicated tasks, which are defined as tasks that
can be typically learned in 30 days or less. The
claimant is limited to brief and superficial contact
with the public that is incidental to the job. He
cannot understand, remember or follow instructions
written in English.
. . . .
6. The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.9969(a)).
Tr. 512, 515, 516, 519.

Based upon the testimony of a

vocational expert (“VE”), the ALJ determined that Martinez could
work as a document preparer, as an addresser, as a cutter and
paster, as a stuffer, and as a table worker.

Discussion
According to Martinez, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ erred by: (1)
failing to find that he had a medically determinable mental

12

impairment; (2) improperly weighing the opinions given by Drs.
Santora and Kapacoff; (3) failing to obtain a consultative
psychiatric evaluation (4) failing to properly consider his
obesity; (5) making findings, when assessing his residual
functional capacity (“RFC”), that were either inconsistent with
one another or were incorrect; (6) improperly weighing the
opinion evidence concerning his physical capacity for work; and
(7) relying upon erroneous factual findings and VE testimony
that was not credible when determining that there were jobs in
the national economy that he could perform.

Martinez is

entitled to a remand based upon the manner in which the ALJ
handled Dr. Santora’s opinions.
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability.

42 U.S.C. §§ 423(a)(1)(A)-(D).

To be eligible

for supplemental security income, a person must be aged, blind,
or disabled, and must meet certain requirements pertaining to
income and assets.

42 U.S.C. § 1382(a).

The question in this

case is whether Martinez was under a disability.

13

For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability 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); see also 42 U.S.C. § 1382c(a)(3)(A)
(setting out a similar definition of disability for determining
eligibility for SSI benefits).

Moreover,

[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, 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) (pertaining to DIB benefits); see also
42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for
determining eligibility for SSI benefits).
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step process.
404.1520 (DIB) & 416.920 (SSI).

14

See 20 C.F.R. §§

The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] 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 [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], 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) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that he is
disabled.

See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

must do so by a preponderance of the evidence.

He

See Mandziej v.

Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)).

Finally,

[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the [claimant] or other witness;
and (3) the [claimant]’s educational background, age,
and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).

15

B. Martinez’s Arguments
As noted, the discussion that follows focusses upon the
manner in which the ALJ handled the opinions offered by Dr.
Santora.
1. Step 2
In her decision, the ALJ determined that neither Martinez’s
affective disorder nor his anxiety disorder was “a severe
medically determinable . . . mental impairment.”
404.1520(a)(4)(ii) & 416.920(a)(4)(ii).

20 C.F.R. §§

The Commissioner argues

that the ALJ’s finding is supported, in part, by Dr. Kapacoff’s
testimony “that the record contained insufficient medical
evidence to establish the presence of a medically determinable
mental impairment.”

Resp’t’s Mem. of Law (doc. no. 14-1) 5.

But, Dr. Kapacoff also testified that Dr. Santora’s two
diagnoses were, in her opinion, adequately supported by the
signs, symptoms, and clinical findings documented in his
psychiatric evaluation and the Mental Impairment Questionnaire
he filled out.

Thus, there can be no question that Martinez’s

affective disorder and his anxiety disorder are medically
determinable impairments; they were, in fact, medically
determined.

Thus, the only issue is the severity of those

impairments.

16

In the First Circuit, it is well established “that the Step
2 severity requirement is . . . to be a de minimis policy,
designed to do no more than screen out groundless claims.”
McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1124
(1st Cir. 1986).

Given that Dr. Santora’s Mental Impairment

Questionnaire includes the only medical evidence in the record
that addresses the severity of Martinez’s mental impairments,
and that Dr. Santora opined that those mental impairments
substantially diminished Martinez’s functional capacity, the ALJ
erred by finding that Martinez’s mental impairments were not
severe for purposes of Step 2 of the sequential analysis.

But,

because Martinez’s claim was not denied at Step 2, the ALJ’s
error was harmless.

See Hickman v. Comm’r of Soc. Sec. Admin.,

399 F. App’x 300, 302 (9th Cir. 2010) (“Any error in the ALJ’s
failure to include a reading disorder as one of Hickman’s severe
impairments at step two of the analysis is harmless.

The ALJ

found Hickman suffered from other severe impairments and, thus,
step two was already resolved in Hickman’s favor.”) (citing
Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)); see also
Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 824–25 (11th
Cir. 2010).

The same does not hold true for the ALJ’s

assessment of Martinez’s mental RFC.

17

2. RFC
At Step 4 of the sequential evaluation process, when
determining whether a claimant can perform his or her past
relevant work, the Commissioner is obligated to assess the
claimant’s RFC.

See 20 C.F.R. §§ 404.1520(e) & 416.920(e).

When assessing Martinez’s mental RFC, the ALJ had before her the
opinions provided by Martinez’s treating psychiatrist, Dr.
Santora, and the testimony provided at the hearing by Dr.
Kapacoff.

In her decision, the ALJ gave little weight to Dr.

Santora’s opinion and gave Dr. Kapacoff’s testimony substantial
weight.

There are several problems with the ALJ’s handling of

that medical evidence.
First, she appears to mischaracterize Dr. Kapacoff’s
testimony.

In her decision, the ALJ wrote:

While the claimant carried diagnoses of panic disorder
without agoraphobia and major depressive disorder,
consistent with Dr. Ka[p]acoff’s testimony, such
diagnoses are questionable due to the lack of medical
evidence supporting such diagnoses in the evidentiary
record.
Tr. 514.

But, when asked whether there was enough information

in Dr. Santora’s records to support those diagnoses, Dr.
Kapacoff gave this response: “I feel that there’s enough for a
diagnosis at that discreet time . . . .”

Tr. 567.

So, Dr.

Kapacoff did not question the validity of Dr. Santora’s

18

diagnoses.

Moreover, while opining that those diagnoses

pertained to a discreet time, Dr. Kapacoff appears not to have
addressed Dr. Santora’s additional opinion that Martinez’s
“impairment [had] lasted or can be expected to last at least
twelve months,” Tr. 410.
There is, however, an even more fundamental problem.
Specifically, whatever else it might be, Dr. Kapacoff’s
testimony is not an opinion about Martinez’s RFC, because she
said virtually nothing about “what [Martinez could] do in a work
setting,” 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1), or “the
most [he could] still do despite [his] limitations,” id.

Rather

than offering an opinion on Martinez’s RFC, Dr. Kapacoff did
little more than criticize Dr. Santora’s opinion.

While Dr.

Kapacoff’s testimony may have sufficed to support the ALJ’s
decision to give little weight to Dr. Santora’s opinion, that
opinion was the only medical opinion on Martinez’s mental RFC,
and an ALJ is generally not free to formulate an RFC that runs
counter to the only medical opinion in the record.

As this

court recently explained:
In Nguyen v. Chater, 172 F.3d 31 (1st Cir. 1999), the
ALJ rejected a medical opinion “as inconsistent with
‘actual findings made on exam and the degree of
treatment needed,’ the lack of ‘recent treatment,’ and
some unspecified aspect of the entire record.” Id. at
35 (footnote omitted). However, the medical opinion

19

the ALJ rejected was uncontroverted by any other
medical opinion in the record. See id. The court of
appeals held that the ALJ committed reversible error
by formulating an RFC that ran counter to the only
medical opinion evidence in the record:
The ALJ was not at liberty to ignore medical
evidence or substitute his own views for
uncontroverted medical opinion. Rose v. Shalala,
34 F.3d 13, 18 (1st Cir. 1994); Nieves v.
Secretary of Health and Human Services, 775 F.2d
12, 14 (1st Cir. 1985; Suarez v. Secretary of
Health and Human Services, 740 F.2d 1 (1st Cir.
1984) (per curiam).
The Commissioner suggests that despite Dr.
Mahoney’s opinion, the medical record supported
the ALJ’s determination that claimant was fully
capable of performing sedentary work. As a lay
person, however, the ALJ was simply not qualified
to interpret raw medical data in functional terms
and no medical opinion supported the
determination. Manso–Pizarro v. Secretary of
Health and Human Services, 76 F.3d 15 (1st Cir.
1996); Perez v. Secretary of Health and Human
Services, 958 F.2d 445, 446 (1st Cir. 1991);
Berrios Lopez v. Secretary of Health and Human
Services, 951 F.2d 427 (1st Cir. 1991); Gordils
v. Secretary of Health and Human Services, 921
F.2d 327, 329 (1st Cir. 1990).
Nguyen, 172 F.3d at 35.
Jabre v. Astrue, No. 11-cv-332-JL, 2012 WL 1216260, at *8-9
(D.N.H. Apr. 5, 2012) (report and recommendation adopted by 2012
WL 1205866 (D.N.H. Apr. 9, 2012)).

Here, given the severity of

the limitations expressed in Dr. Santora’s opinion, and the lack
of any medical opinion to the contrary, the ALJ erred in her

20

formulation of Martinez’s mental RFC, and that error warrants a
remand.
3. Issues on Remand
Because the ALJ’s mishandling of the medical evidence
provides sufficient grounds for remand, the court need not
address Martinez’s remaining arguments.

Nevertheless, the court

offers the following observation, for consideration on remand.
The ALJ noted in her decision that “the claimant’s
representative inquired about obtainment of a consultative
examination for review of the claimant’s alleged mental
impairments.”

Tr. 515.

But, “[b]ased on the testimony of Dr.

Ka[p]acoff and the evidentiary record as a whole, [the ALJ
found] such [an] examination . . . not [to be] warranted,” id.
However, Dr. Kapacoff’s testimony was that the medical records
were sparce and of poor quality, and she further testified that
to properly determine whether Martinez has a mental impairment,
he should undergo a psychological or psychiatric evaluation.
So, rather than undercutting Martinez’s request for a
consultative examination, Dr. Kapacoff’s testimony actually
supports that request.
may well be in order.

Accordingly, a consultative examination
See 20 C.F.R. §§ 404.1545(a)(3) &

416.945(a)(3).

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Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 14, is
denied, and Martinez’s motion to reverse the decision of the
Acting Commissioner, document no. 10, is granted, to the extent
that the case is remanded to the Acting Commissioner for further
proceedings, pursuant to sentence four of 42 U.S.C. § 405(g).
The clerk of the court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge

March 10, 2014
cc:

Janine Gawryl, Esq.
T. David Plourde, Esq.

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