Shaw v. US Social Security Administration, Acting Commissioner
Filing
18
///ORDER granting 11 Motion to Reverse Decision of Commissioner; denying 16 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
Laura Kathleen Shaw
v.
Civil No. 13-cv-503-JL
Opinion No. 2015 DNH 047
Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Laura Shaw appeals the Social Security Administration’s
(“SSA”) denial of her application for disability insurance
benefits.
An administrative law judge at the SSA (“ALJ”) ruled
that, despite Shaw’s severe impairments of major depressive
disorder, anxiety disorder, post-traumatic stress disorder versus
generalized anxiety disorder, and degenerative disc disease of
the lumbar spine, she retains the residual functional capacity to
perform substantial gainful activity which exists in the national
economy, and, as a result, is not disabled.
§ 404.1505(a).
See 20 C.F.R.
The Appeals Council denied Shaw’s request for
review of the ALJ’s decision, see id. § 404.968(a), with the
result that the ALJ’s decision became the SSA’s final decision on
Shaw’s application, see id. § 404.981.
Shaw then appealed the
decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Shaw has filed a motion to reverse the decision.
9.1(b)(1).
See L.R.
She argues, among other things, that the ALJ erred in
evaluating the opinions of the various medical professionals who
provided assessments of Shaw’s ability to perform work-related
activities.
The Commissioner of the SSA maintains that the ALJ
committed no error and has cross-moved for an order affirming the
decision.
See L.R. 9.1(d).
After careful consideration, the
court agrees with Shaw that the ALJ erred in evaluating at least
some of the opinion evidence, and therefore grants her motion to
reverse (and denies the Commissioner’s motion to affirm) the
ALJ’s decision.
Although, as already mentioned, the ALJ found that Shaw
suffers from a combination of physical and mental impairments,
the ALJ concluded that Shaw’s mental impairments limit her to
“uncomplicated tasks,” but otherwise have no effect on her RFC.
All three medical sources to comment on that issue, however,
opined that her mental impairments impose greater restrictions.
Dr. Benjamin Garber, who conducted an in-person psychological
evaluation of Shaw, concluded that she is “able to understand and
remember instructions only with intense and immediate supports,”
can “concentrate to complete tasks only over the short term and
with immediate supports,” and “cannot tolerate work place
stresses.”
Admin. R. at 330.
Dr. Nicholas Kalfas, a non-
examining state agency medical consultant, opined not long
thereafter that Shaw’s mental impairments cause her marked
2
difficulties in maintaining concentration, persistence, or pace,
and concluded that the evidence of record was sufficient to
establish a disability onset date of January 1, 2011.
Another
state agency consultant, Dr. William Jamieson, opined that Shaw
suffered moderate limitations in a number of functional areas,
and explained:
Due to symptoms of anxiety and depression, the claimant
is not consistently able to deal with extended or
detailed instructions, to maintain attention and
persistence to task consistently over extended periods,
or to consistently perform activities within a
schedule, including attendance. She cannot
consistently sustain an ordinary routine without
special supervision. She has very limited stress
tolerance, and cannot consistently deal with common
work-related stress.
Id. at 349.
In her written decision, the ALJ addressed only the opinions
of Drs. Garber and Jamieson (the latter of whom she incorrectly
identified as Dr. Kalfas), affording “very limited weight” to
both.
She did not address the opinion of Dr. Kalfas at all--an
omission which by itself would arguably necessitate remand, since
the governing regulations require an ALJ to “explain in the
decision the weight given to the opinions of a State agency
medical or psychological consultant or other program physician,
psychologist, or other medical specialist.”
20 C.F.R.
§ 404.1527(e)(2)(ii); see also Social Security Ruling (“SSR”) 966p, Titles II and XVI: Consideration of Administrative Findings
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of Fact by State Agency Medical and Psychological Consultants,
1996 WL 374180, at *2 (S.S.A. 1996) (ALJs “are not bound by
findings made by State agency or other program physicians and
psychologists, but they may not ignore these opinions and must
explain the weight given to the opinions in their decisions”);
Dube v. Astrue, 781 F. Supp. 2d 27, 34-36 (D.N.H. 2011) (ALJ’s
decision reversed for failure to discuss findings by state agency
consultant that contradicted ALJ’s conclusion).
Notwithstanding
that omission, however, the court would still be constrained to
reverse the ALJ’s decision.
While ALJs are “afforded a substantial amount of discretion”
in weighing medical source opinions, that discretion is not
unbridled, and must be “exercised reasonably.”
Maio v. Astrue,
2011 DNH 092, 10 (quoting Dumensil v. Astrue, 2010 DNH 135, 13).
An ALJ’s decision to discount the opinion of a medical source,
like an ALJ’s other findings, must be supported by substantial
evidence in the record.
086, 8-11.
See, e.g., Mackinley v. Astrue, 2011 DNH
Where an ALJ relies on inconsistencies between a
source’s opinion and the record to discount that opinion, “the
claimed inconsistencies must be adequately supported by the
record as well.”
Beck v. Astrue, 2011 DNH 146, 14.
Here, the
bulk of the ALJ’s stated reasons for discounting the opinions of
Drs. Garber and Jamieson do not find support in the record.
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In rejecting those opinions, the ALJ relied principally on
her own observations of Shaw at the administrative hearing.
Discussing Dr. Jamieson’s opinion, she wrote:
The opinions of Dr. [Jamieson] are given very limited
weight, as they are highly inconsistent with the
claimant’s presentation at the hearing. There, she was
able to offer very articulate and detailed answers to
the questions posed. She was also able to remember all
of her medications, including dosing, and provided a
list of past medications from memory as well. She
appeared to have no difficulty building a rapport with
the undersigned and maintaining attention over the
duration of the period. Further, the claimant reported
that she is able to attend church and [B]ible study
weekly, which undoubtedly requires a good amount of
concentration as well as social interaction. She also
reported that she spends most of her time reading on
her [K]indle, which again requires ample concentration
over extended periods. As such, the undersigned finds
that the claimant is able to sustain the concentration,
persistence, and pace required for at least
uncomplicated tasks over an 8-hour workday and 40-hour
workweek.
Admin. R. at 22.
The ALJ cited similar reasons for discounting
Dr. Garber’s opinions (although she also noted inconsistencies
between his exam notes and findings).
Id.
The ALJ’s interactions with Shaw at the hearing did not
provide sufficient grounds for rejecting the opinions of Drs.
Garber and Jamieson.
To be sure, there may well be circumstances
in which the claimant’s presentation at the hearing runs so
counter to a medical opinion regarding the claimant’s limitations
as to effectively undermine it–-e.g., if a source opines that the
claimant is so socially anxious that she is incapable of carrying
5
on a conversation, but then has no difficulty casually conversing
with the ALJ at the hearing.1
But that is not the case here.
At
best, the fact that Shaw could “remember all of her medications,
including dosing, and provided a list of past medications from
memory” might cast doubt on Dr. Garber’s opinion that Shaw is
“able to understand and remember instructions only with intense
and immediate supports.”
The ALJ’s other specific observations,
however–-Shaw’s ability “to offer very articulate and detailed
answers” and lack of “difficulty building a rapport” with the ALJ
or “maintaining attention” during the hearing–-are in no way
inconsistent (let alone “highly inconsistent”) with the other
opinions offered by the doctors.
By way of example, that Shaw could maintain her attention
for the duration of the one-hour hearing does not show that,
contrary to Dr. Jamieson’s opinion, she can in fact “maintain
attention and persistence to task consistently over extended
periods.”
Along the same lines, that Shaw was able to interact
appropriately with the ALJ for that same relatively short period
1
Of course, an ALJ may also rely upon her own observations
of the claimant at the hearing when evaluating the credibility of
the claimant’s complaints. See, e.g., SSR 96-7p, Titles II and
XVI: Evaluation of Symptoms in Disability Cases, 1996 WL 374186,
at *5 (S.S.A. 1996) (“In instances where the individual attends
an administrative proceeding conducted by the adjudicator, the
adjudicator may also consider his or her own recorded
observations of the individual as part of the overall evaluation
of the credibility of the individual’s statements.”).
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does not show that, contrary to both doctors’ opinions, she can
tolerate the stresses commonly presented in an eight-hour workday
or 40-hour workweek.
And none of the ALJ’s other observations
from her brief interaction with Shaw rebut the doctors’ other
opinions, i.e., that Shaw cannot concentrate well enough to
complete tasks for more than a short term and without immediate
supports, cannot deal with extended or detailed instructions, and
is unable to consistently perform activities within a schedule or
sustain an ordinary routine.
The other grounds on which the ALJ relied in discounting Dr.
Jamieson’s opinion–-Shaw’s reading and her attendance at church–are likewise lacking.
While the ALJ’s decision claims that Shaw
“spends most of her time reading on her [K]indle,” the record
shows that, in fact, Shaw testified only that she reads “to pass
the time.”
Admin. R. at 49.
She made no specific representation
as to the amount of time she spends reading, although she did
state that she had difficulty doing so “for any length of time
due to pain, fatigue and concentration problems,” id. at 135–directly contradicting the conclusion the ALJ drew from Shaw’s
reading, that she is capable of “concentrat[ing] over extended
periods.”
Similarly, Shaw did not report that she was “able to
attend church and [B]ible study weekly,” only that she “tried”
to, id.–-and she in fact told Dr. Garber that she could “seldom
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get out to church,” id. at 329.
In any event, while attendance
at church may require “a good amount of concentration as well as
social interaction,” as the ALJ speculated, that does nothing to
undermine Dr. Jamieson’s opinions.
As already mentioned, the
ability to concentrate for short periods does not translate to an
ability to summon the concentration needed to perform tasks
consistently in a workplace environment over the course of an
eight-hour workday or 40-hour workweek.
And Dr. Jamieson opined
that Shaw’s mental impairments caused no significant limitations
in her ability to interact socially, see id. at 348, so evidence
that Shaw can interact socially is in fact wholly consistent with
his opinion.
The long and the short of it, then, is that there is not
substantial evidence to support any of the reasons the ALJ gave
for discounting Dr. Jamieson’s opinion, or most of the reasons
she gave for discounting Dr. Garber’s opinion.
There may well be
good reasons to discount those opinions (and the apparent lack of
objective support for Dr. Garber’s conclusions in his exam notes
may well be one).
“But it is not the task of this court to re-
weigh the record evidence and ‘articulate for the first time at
the appeals stage good reasons for rejecting a [medical] source’s
opinion.’”
Coppola v. Colvin, 2014 DNH 033, 15-16 (quoting
Bergeron v. Astrue, 2009 DNH 174, 12).
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The case must be remanded
to the SSA so the opinions of Drs. Garber, Kalfas, and Jamieson
can be evaluated in accordance with 20 C.F.R. § 404.1527.
The
court, of course, expresses no opinion as to the proper result on
remand.2
For the foregoing reasons, Shaw’s motion to reverse the
SSA’s decision3 is GRANTED, and the Commissioner’s motion to
affirm it4 is DENIED.
See 42 U.S.C. § 405(g).
The clerk shall
enter judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: March 11, 2015
cc:
Janine Gawryl, Esq.
Robert J. Rabuck, Esq.
2
Shaw also advances a number of other arguments in favor of
reversing the ALJ’s decision. The court is skeptical of those
arguments, largely for the reasons the Commissioner identifies in
her memorandum of law, but it ultimately need not reach them
because the errors identified in the main body of this opinion
necessitate reversal and remand in and of themselves.
3
Document no. 11.
4
Document no. 16.
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