McQuaid v. US Social Security Administration, Acting Commissioner
Filing
9
/// ORDER granting 5 Motion to Reverse Decision of Commissioner; denying 7 Motion to Affirm Decision of Commissioner. The clerk of court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(jbw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sarah McQuaid
v.
Case No. 15-cv-08-SM
Opinion No. 2015 DNH 203
Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Sarah McQuaid moves to
reverse the Acting Commissioner’s decision to deny her
applications 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.
I. 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 [Acting 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) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
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 (1971)).
But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence.
2
Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.”
Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted).
Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.”
Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam).
Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the 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)).
II. Background
The parties have submitted a Joint Statement of Material
Facts, document no. 8.
That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
McQuaid has been diagnosed with anxiety and has been
treated for both anxiety and depression.
For those conditions,
her primary care physician, Dr. Melissa Hanrahan, has prescribed
3
Paxil, 1 Celexa, 2 Valium, 3 Klonopin, 4 Prozac, 5 Xanax, 6 Abilify, 7
Trazadone, 8 Wellbutrin, 9 and Amitriptyline. 10
McQuaid was
diagnosed with abdominal pain in December of 2009.
See
Administrative Transcript (hereinafter “Tr.”) 283.
In 2010, she
applied for disability insurance benefits and supplemental
security income.
As a result of her application, McQuaid was seen by Dr.
1
Paxil is used to treat depression, anxiety, and panic
disorder. See Dorland’s Illustrated Medical Encyclopedia (32nd
ed. 2012) 1384, 1399.
2
Celexa is an antidepressant.
at 312, 366.
See Dorland’s, supra note 1,
3
Valium is a “trademark for preparations of diazepam.”
Dorland’s, supra note 1, at 2020. Diazepam is an anti-anxiety
agent. See id. at 512.
4
Klonopin is used to treat panic disorders.
supra note 1, at 373, 989.
5
Prozac is used to treat depression.
note 1, at 722, 1539.
See Dorland’s,
See Dorland’s, supra
6
See Dorland’s, supra note
7
See Dorland’s, supra note 1,
Xanax is an anti-anxiety agent.
1, at 54, 2085.
Abilify is an antipsychotic.
at 3, 132.
8
Trazadone hydrochloride is an antidepressant.
Dorland’s, supra note 1, at 1957.
9
Wellbutrin is an antidepressant.
note 1, at 261, 2079.
10
See
See Dorland’s, supra
Amitriptyline hydrochloride is an antidepressant.
Dorland’s, supra note 1, at 63.
4
See
Rexford Burnette for a consultative psychological examination.
He prepared a Mental Health Evaluation Report in which he made
diagnoses of major depressive disorder, anxiety disorder,
alcohol abuse in sustained full remission, and cannabis abuse in
sustained full remission.
As a part of his mental status
examination, Dr. Burnette made the following observation
concerning McQuaid’s mood:
This claimant was moderately anxious during this
session but her depressive symptoms were not overtly
apparent (and she acknowledges that her Prozac
prescription has been very helpful in managing her
depression).
Tr. 345.
When asked to give an opinion on McQuaid’s abilities to
perform activities of daily living, Dr. Burnette referred to a
description of her present daily activities that includes the
following:
She spends most of her time at home and dreads going
anywhere. She does drive but tries to avoid it
whenever possible. . . . She occasionally attends
appointments with her PCP. She drove to this session
unaccompanied but said she only tried it because it is
so close to her home and she knew the area well. . .
. She rarely shops and prefers to be accompanied
whenever she does. . . . This claimant performs
housework and food preparation, and she attends to her
hygiene and grooming appropriately.
Tr. 346.
When asked for his opinion on McQuaid’s abilities in
the area of social functioning, Dr. Burnette stated, in part:
This claimant has few social contacts.
5
. . .
She has
a routine therapeutic relationship with her PCP which
is apparently long-standing. She has few, if any,
friends and attends no social or religious activities.
She was able to establish effective interpersonal
rapport with this examiner and she expressed her
thoughts and feelings well, but she remained anxious
throughout the session. Last year . . . she had
worked for “a month or so” as a waitress . . . leaving
because of “the driving” and “dealing with the people”
. . . . She said that she was always well-liked in
her job but she felt increasingly anxious and unable
to deal with people and the public.
Tr. 347.
When asked for his opinion on McQuaid’s abilities to
understand and remember instructions, Dr. Burnette stated that
those abilities were “[n]ot significantly limited at this time.”
Id.
When asked for his opinion on McQuaid’s abilities in the
areas of concentration and task completion, Dr. Burnette wrote:
“Ms. McQuaid describes persistent and generalized anxiety
throughout the day.
This anxiety reportedly interferes with her
ability to focus on tasks and complete complex projects.”
Id.
When asked for his opinion on McQuaid’s abilities in the areas
of reacting to stress and adapting to work or work-like
situations, Dr. Burnette wrote:
In her last job, this claimant’s growing anxiety about
dealing with people and the public was a major
contributor to her leaving her profession as a
waitress. However, she apparently performed her job
effectively for years.
Tr. 348.
Finally, Dr. Burnette made the following prognosis:
Ms. McQuaid is compliant with her prescription
psychiatric medications. She did not express any
particular interest in engaging in formal
6
psychological counseling – partly related to her
anxiety about driving to sessions and establishing a
therapeutic relationship. However, competent mental
health treatment may help ameliorate her anxiety
symptoms more effectively than expecting her PCP to
manage these with medications alone. At the very
least a psychiatric consultation is suggested.
Id.
Based upon Dr. Burnette’s evaluation, Dr. Edward Martin
completed a Psychiatric Review Technique form on McQuaid.
With
regard to McQuaid’s functional limitations, Dr. Martin opined
that McQuaid had: (1) mild restriction on her activities of
daily living; (2) mild difficulties in maintaining social
functioning; (3) mild difficulties in maintaining concentration,
persistence, and pace; and (4) no episodes of decompensation
each of extended duration.
Based upon that, he reached the
following conclusion:
Dr. Burnette opines that, despite any impairments, Ms
McQuaid is able to care for herself adequately if
required to do so, to interact effectively and
appropriately with others despite some discomfort, to
maintain concentration/persistence/pace, and to
otherwise tolerate the stresses common to work or
work-like situations. Thus, Impairments Not Severe is
an appropriate conclusion.
Tr. 361.
With respect to McQuaid’s physical conditions, Dr. Jonathan
Jaffe opined, in August of 2010, that McQuaid’s abdominal pain
was not a severe impairment.
About six months later, McQuaid
was diagnosed with “arthritic changes in her right thumb.”
7
Tr.
370.
In a letter addressed to McQuaid’s attorney that post-dated
Dr. Martin’s opinion on McQuaid’s mental condition, Dr. Hanrahan
stated:
[McQuaid] has been my patient since 2003 and has been
unable to work since approximately March of 2009. She
has suffered with severe disabling anxiety and
depression. I have seen her struggle with trying to
work and trying to cope with the anxiety and panic
attacks. She would get physical symptoms such as
vomiting and headaches from the anxiety. We have
tried many medications over the years some help calm
the anxiety but nothing has relieved it. She has a
hard time leaving the house due to her anxiety. She
did work for many years as a waitress but []as anxiety
got worse she found this harder and harder to do.
Tr. 364.
Dr. Hanrahan’s statement concerning the general
ineffectiveness of medication is supported by statements in her
treatment notes. 11
About a month after she sent the letter quoted above, Dr.
Hanrahan also completed a Medical Source Statement in which she
opined that McQuaid was unable to work at all and would be
absent from work due to her impairments for more than four days
per month.
With regard to McQuaid’s functional limitations, Dr.
Hanrahan opined that McQuaid had: (1) marked restriction on her
11
Those statements include: (1) on April 11, 2008: “has had
poor response to SSRIs [selective serotonin reuptake inhibitors]
in the past,” Tr. 302; (2) on June 24, 2009: “valium and ativan
not much help,” Tr. 289; and (3) on December 21, 2009: “in the
past she has been fairly nonresponsive to SSRIs,” Tr. 288.
8
activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in
maintaining concentration, persistence, and pace; and (4) four
or more episodes of decompensation, within a 12-month period,
each lasting at least two weeks.
Those opinions are supported
by impressions in Dr. Hanrahan’s treatment records that both
pre- and post-date her Medical Source Statement. 12
McQuaid’s application was denied at the initial level.
Thereafter, she received a hearing before an Administrative Law
Judge (“ALJ”), who ruled that she was not disabled because she
did not have a severe impairment, as that term is defined in the
applicable Social Security regulations.
See Tr. 72.
Upon
review, the Appeals Council vacated the ALJ’s decision and
remanded the case for further proceedings.
See id. at 80.
In its remand order, the Appeals Council noted that the
ALJ: (1) failed to evaluate McQuaid’s hand pain and arthritic
changes; (2) did not discuss or evaluate a letter in which
12
Those impressions include: (1) on December 21, 2009: “she
really has not been able to work due to her depression,” Tr.
288; (2) on August 17, 2010: “I do not feel she can work in the
states she has been in the last few years,” Tr. 398; (3) on
September 27, 2010: “I feel that she is in no shape to work and
is not . . . able to hold a job,” Tr. 396; and (4) on February
4, 2011: “due to her severe . . . agoraphobia I do not feel she
is in any condition to work at this time and for the next year
or two until she has a good course of behavioral therapy,” Tr.
394.
9
McQuaid was awarded Medicaid benefits; and (3) did not address
or evaluate various factors mentioned in Dr. Hanrahan’s letter.
After stating that “further development of the record and
evaluation are needed regarding the claimant’s medically
determinable impairments,” Tr. 81, the Appeals Council concluded
its order by directing the ALJ to:
[o]btain additional evidence concerning the claimant’s
impairments in order to complete the administrative
record in accordance with the regulatory standards
regarding consultative examinations and existing
medical evidence . . .;
[f]urther evaluate the nature and severity of the
claimant’s medically determinable impairments of
record, including the pain and arthritic changes in
her right hand [and] [d]etermine if they have more
than a minimal effect on the claimant’s ability to
work or if they significantly limit the claimant’s
ability to perform basic work activities . . .;
[f]urther 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. . .; and
[f]urther evaluate the claimant’s subjective
complaints . . . .
Tr. 81.
With regard to obtaining additional evidence, the
Appeals Council said: “The additional evidence may include, as
warranted and available, a consultative examination with
psychological testing and medical source statements about what
the claimant can still do despite her impairments.”
Id.
After the case was remanded, McQuaid’s attorney obtained a
10
Medical Source Statement from James Samson, a physical
therapist, who examined McQuaid and performed a variety of
tests.
“[T]he purpose of the testing [was] to document
[McQuaid’s] abilities and potential for physical activities in
areas such as sitting, standing, walking, reaching, grasping,
fine fingering, lifting, pushing, pulling, bending, stooping and
squatting.”
Tr. 406.
Samson noted the following diagnoses: low
back pain, right thumb pain, left ankle pain, chronic headaches,
agoraphobia, and depression.
Based upon his testing, Samson
determined that McQuaid could work 40 hours a week, but also
opined that, as a result of her impairments, she would have to
miss more than four days of work per month.
McQuaid received a second hearing before the ALJ.
After
that hearing, the ALJ issued a decision that includes the
following relevant findings of fact and conclusions of law:
3. The claimant has the combination of medically
determinable impairments consisting of abdominal pain,
affective disorder and anxiety disorder (20 CFR
404.1521 et seq. and 416.921 et seq.).
. . . .
4. The claimant does not have an impairment or
combination of impairments that has significantly
limited (or is expected to significantly limit) the
ability to perform basic work-related activities for
12 consecutive months; therefore, the claimant does
not have a severe impairment or combination of
impairments (20 CFR 404.1521 et seq. and 416.921 et
seq.).
11
Tr. 20, 21.
III. Discussion
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 McQuaid was under a disability from December 1,
2008, through September 17, 2013, the date of the ALJ’s
decision.
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.
See 20 C.F.R. §§
404.1520 (DIB) & 416.920 (SSI).
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
12
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 she is
disabled.
See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
must do so by a preponderance of the evidence.
She
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)).
B. McQuaid’s Claims
McQuaid claims that the ALJ’s step-two determination, i.e.,
that she did not have a severe impairment at any point before
the date of his decision, is not supported by substantial
evidence.
The Acting Commissioner disagrees.
The court begins
by describing the relevant legal principles and then considers,
in turn, the ALJ’s determinations that McQuaid did not have
either a severe mental or physical impairment.
1. Legal Principles
The applicable regulations provide that a claimant who does
not have a severe impairment of sufficient duration is not
disabled.
See 20 C.F.R. §§ 404.1520(a)(4)(ii) &
416.920(a)(4)(ii).
More specifically, “[i]f [a claimant] do[es]
not have any impairment . . . which significantly limits [his]
13
physical or mental ability to do basic work activities, [the
Acting Commissioner] will find that [the claimant] do[es] not
have a severe impairment and [is], therefore, not disabled.”
C.F.R. § 404.1520(c); see also § 416.920(c).
20
“An impairment . .
. is not severe if it does not significantly limit [a
claimant’s] physical or mental ability to do basic work
activities.”
20 C.F.R. § 404.1421(a); see also § 416.921(a).
In this 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).
Under Social Security Ruling (“SSR”) 85-28, “a
finding of ‘non-severe’ is only to be made where ‘medical
evidence establishes only a slight abnormality or combination of
slight abnormalities which would have no more than a minimal
effect on an individual’s ability to work.’”
McDonald, 795 F.2d
at 1124 (quoting SSR 85-28, 1985 WL 56856, at *3 (S.S.A. 1985)).
Thus, a proper analysis at step two should “do no ‘more than
allow the [Acting Commissioner] to deny benefits summarily to
those applicants with impairments of a minimal nature which
could never prevent a person from working.’”
Id. at 1125
(quoting Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir. 1985))
(emphasis added).
14
To move her claim past step two in the sequential analysis,
McQuaid must prove, by a preponderance of the evidence, that her
impairments were not so minimal that they could never prevent a
person from working.
F. Supp. at 129.
See Bowen, 482 U.S. at 146; Mandziej, 944
On the other hand, the ALJ’s step-two
determination must be affirmed if it is based on evidence that a
reasonable mind might accept as adequate to support it.
See
Currier, 612 F.2d at 597.
2. Mental Impairments
The ALJ determined that McQuaid did not suffer from any
severe mental impairment by: (1) concurring with Dr. Martin’s
opinion; (2) giving little weight to Dr. Hanrahan’s letter of
September, 2010; (3) giving no weight to Dr. Hanrahan’s Medical
Source Statement of October, 2010; and (4) repeating, almost
verbatim, the analysis he used in his previous decision with
respect to 20 C.F.R. §§ 404.1520a & 416.920a.
74. 13
See Tr. 25-26,
McQuaid argues that the ALJ’s step-two determination is
13
There is only one actual difference between the two
analyses. In his first decision, the ALJ wrote: “While the May
2010 consultative mental health evaluation documents no
significant limitations [on] understanding and remembering
instructions, the claimant complained that anxiety interfered
with her ability to focus on and complete tasks.” Tr. 74. In
his second decision, the ALJ wrote: “While the claimant
complained that anxiety interfered with her ability to focus on
and complete tasks, the May 2010 consultative mental health
evaluation documents no significant limitation with
understanding and remembering instructions.” Tr. 26.
15
not supported by substantial evidence because: (1) Dr. Martin’s
opinion was based upon an incomplete record, i.e., a record that
did not include Dr. Hanrahan’s opinion; and (2) Dr. Martin
misinterpreted Dr. Burnette’s evaluation.
The Acting
Commissioner disagrees.
There are several problems with the ALJ’s determination
that McQuaid’s anxiety and depression were not severe
impairments.
As noted, the ALJ relied upon the opinion of Dr.
Martin, who relied upon Dr. Burnette’s evaluation.
In his
decision, the ALJ said:
Dr. Burnette noted that the claimant was only
medically managed with the medication Prozac, and that
the claimant feels that it helps moderately well with
her depressive symptoms.
Tr. 23.
While Dr. Burnette reported that McQuaid
“acknowledge[d] that her Prozac prescription [had] been very
helpful in managing her depression,” Tr. 345, he also said this:
She describes persistent and long-standing symptoms of
anxiety which she does not feel [have] been noticeably
ameliorated by the Prozac. She takes diazepam 5 mg.
[by mouth, three times a day] with minor efficacy but
she feels that her years of taking benzodiazepineclass drugs has reduced her response to them. She
states that she experienced her first “panic attack”
approximately “22 years ago” . . . . These episodes
have come and gone in the intervening years and she
had been treated with Xanax and Klonopin in the past .
. . . Even with her diazepam now, she said that she
experienced four or five panic-like episodes in the
past month.
. . . .
16
According to this claimant’s medication bottles (from
which she read), Ms. McQuaid currently takes Prozac 60
mg. [by mouth, once a] day (which had recently been
increased) and diazepam 5 mg. [by mouth] “up to three
times a day” . . . . These are prescribed by Melissa
B. Hanrahan, M.D. She felt that the Prozac helps
moderately well with her depressive symptoms, but she
reports considerable spill-over anxiety in spite of
the diazepam.
Tr. 345, 346.
So, here is where things stand.
McQuaid’s medical records
document the use of 10 different medications to treat two
different mental impairments, anxiety and depression.
Dr.
Burnette’s evaluation mentions four of the 10 medications,
Prozac, Xanax, diazepam, and Klonopin, and both of the
impairments for which those medications were prescribed.
Yet,
the ALJ interpreted Dr. Burnette’s evaluation to say that
McQuaid had been treated only with Prozac for depression.
Obviously, for the purpose of ascertaining severity at step two,
a patient with a single impairment that is well controlled with
a single medication is in a substantially different position
than a patient with two impairments, one of which has not been
well controlled despite the use of many different medications.
In short, the ALJ’s characterization of Dr. Burnette’s
evaluation, which was the basis for the medical opinion on which
the ALJ relied, is not supported by substantial evidence.
In addition to understating the findings in a medical
17
evaluation that itself understated the actual medical record,
the ALJ also independently understated the medical record.
In
his discussion of Dr. Hanrahan’s letter, to which he gave little
weight, the ALJ said:
The claimant reported difficulty leaving her house;
but Dr. Hanrahan’s notes do not reflect any difficulty
attending appointments with her . . . .
Tr. 24.
Dr. Hanrahan’s notes, however, include these comments:
(1) on April 23, 2010, “having to double valium to get out of
the house,” Tr. 399; (2) on August 17, 2010: “she can barely
make it to appointments here,” Tr. 373; and (3) on January 30,
2012: “had a shot of whiskey to get out of the house today,” Tr.
385.
Thus, the ALJ’s statement about Dr. Hanrahan’s notes is
not supported by substantial evidence.
Turning to the remand order, the Appeals Council directed
the ALJ to obtain additional evidence concerning McQuaid’s
impairments including, if warranted, “a consultative examination
with psychological testing.”
Tr. 81.
The ALJ does not appear
to have obtained any additional evidence.
Given that Dr.
Burnette’s consultative examination pre-dates Dr. Hanrahan’s
opinions, and does not appear to include a consideration of her
treatment records, it is difficult to see how a new consultative
examination is not warranted in this case.
That conclusion is
reinforced by the lack of any indication in the medical records
18
that McQuaid’s mental condition is improving, and by Dr.
Burnette’s observations that McQuaid’s mental health appeared to
be worsening.
See Tr. 344 (noting McQuaid’s reports of
escalating symptoms of depression); 347 (noting McQuaid’s
reports of increasing anxiety); 348 (stating: “this claimant’s
growing anxiety about dealing with people and the public was a
major contributor to her leaving her profession as a waitress”
(emphasis added)).
The Appeals Council also directed the ALJ to
“[f]urther evaluate the claimant’s mental impairments in
accordance with the special technique described in 20 CFR
404.1520a and 416.920a.”
Tr. 81 (emphasis added).
That
directive indicates that the evaluation in the ALJ’s first
decision was insufficient and, presumably, was based upon the
directive to obtain additional evidence.
Yet, the further
evaluation in the ALJ’s second decision consists of nothing more
than a retyping of the evaluation from his first decision.
In sum, the primary focus of the ALJ’s second decision
seems to be mounting a defense of his first decision, rather
than the record development and further evaluation mandated by
the Appeals Council.
The bottom line is this.
Step two is a
minor hurdle, see McDonald, 795 F.2d at 1124, and the court
cannot endorse the ALJ’s determination that the medical evidence
establishes that McQuaid’s depression and anxiety, which have
19
been treated for several years with no fewer than 10 different
medications, constitute “a slight abnormality,” id., that “could
never prevent a person from working,” id. at 1125.
Accordingly,
the case must be remanded yet again.
3. Physical Impairments
While this case must be remanded as a result of the ALJ’s
erroneous determination that McQuaid’s mental impairments did
not meet the step-two severity requirement, the court turns,
briefly, to the ALJ’s treatment of McQuaid’s physical
impairments.
The ALJ determined that McQuaid did not suffer
from any severe physical impairment by: (1) determining that she
did not have a medically determinable impairment of her hand;
(2) concurring with Dr. Jaffe’s opinion that her abdominal pain
was not a severe impairment; and (3) giving no weight to the
opinion from James Samson.
With respect to the hand impairment, the Appeals Council
directed the ALJ to “[f]urther evaluate the nature and severity
of the claimant’s medically determinable impairments of record,
including the pain and arthritic changes in her right hand.”
Tr. 81 (emphasis added).
In other words, the Appeals Council
identified McQuaid’s hand pain and arthritic changes as
medically determinable impairments.
Rather than further
evaluating the nature and severity of those impairments, as
20
directed by the Appeals Council, the ALJ determined that “[t]he
claimant has no medically determined hand condition.”
Tr. 21.
That was error.
On February 4, 2011, McQuaid complained to Dr. Hanrahan of
“R hand pain, middle finger pain.”
Tr. 369.
Dr. Hanrahan, in
turn, diagnosed McQuaid with right hand pain, and further
elaborated: “It looks like she has some arthritic changes in her
right thumb.”
Tr. 370.
Dr. Hanrahan then recommended
treatment: “she can use Tylenol No. 3 as needed.”
Id.
Thus,
the Appeals Council determined that McQuaid’s hand condition was
medically determined, and McQuaid’s treatment records
demonstrate that her hand condition was medically determined.
Whether that impairment was severe is another question; for the
moment it is sufficient to note that the ALJ erred in redetermining that McQuaid’s hand condition was not medically
determined.
There is another problem with the ALJ’s handling of
McQuaid’s physical impairments.
After the ALJ decided to give
no weight to James Samson’s opinion, the only medical evidence
before him concerning McQuaid’s physical condition was Dr.
Jaffe’s opinion, which was rendered before McQuaid was diagnosed
with arthritic changes to her right hand.
Thus, the ALJ made
his step-two determination without the benefit of any medical
21
opinion concerning the limiting effects of McQuaid’s hand
condition, notwithstanding the Appeals Council’s instructions
to: (1) evaluate the nature and severity of McQuaid’s hand
condition; and (2) obtain additional evidence.
This deficiency
should be remedied on remand.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 7, is denied, and
McQuaid’s motion to reverse that decision, document no. 5, is
granted to the extent that the case is necessarily 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.
____________________________
Steven McAuliffe
United States District Judge
November 2, 2015
cc:
Peter K. Marsh, Esq.
Robert J. Rabuck, Esq.
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