Differ v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 12 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
Brandi Gale Differ,
v.
Civil No. 15-cv-029-JL
Opinion No. 2016 DNH 054
Carolyn Colvin,
Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Brandi Gale Differ has appealed the Social Security
Administration’s (“SSA”) denial of her application for
disability benefits.
An administrative law judge at the SSA
(“ALJ”) ruled that, despite several severe physical impediments,
Differ retains the residual functional capacity (“RFC”) to
perform jobs that exist in significant numbers in the national
economy, and thus is not disabled.
404.1505(a), 416.905(a).
See 20 C.F.R. §§
The Appeals Council later denied
Differ’s request for review, see id. § 404.967, with the result
that the ALJ’s decision became the final decision on Differ’s
application, see id. § 404.981.
Differ then appealed the
decision to this court, which has jurisdiction under 42 U.S.C. §
405(g) (Social Security).
Differ has moved to reverse the decision, see L.R. 9.1(b),
contending that the ALJ erred in his treatment of medical and
other opinion evidence at steps two through four of his
analysis.
The Acting Commissioner of the SSA has cross-moved
for an order affirming the ALJ’s decision.
See L.R. 9.1(e).
After careful consideration, the court agrees with Differ that
the ALJ erred in weighing the medical opinion evidence, and
therefore grants Differ’s motion to reverse (and denies the
Acting Commissioner’s motion to affirm) the ALJ’s decision.
I.
Applicable legal standard
The court limits its review of a final decision of the SSA
“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 will uphold the ALJ’s decision if it is supported by “such
evidence as a reasonable mind might accept as adequate to
support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotations omitted).
Though the evidence in the record
may support multiple conclusions, the court will still uphold
the ALJ’s findings “if a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to support
his conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991).
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II.
Background
In assessing Differ’s request for disability benefits, the
ALJ engaged in the requisite five-step process.
§ 416.920.
See 20 C.F.R.
After concluding that Differ had not engaged in
substantial gainful activity since the date of her application,
March 16, 2012, he analyzed the severity of Differ’s
impairments.
He determined that Differ suffers from two severe
physical impairments:
obesity and status post open reduction
and internal fixation surgery of the right hip.
He concluded,
however, that Differ’s claimed mental impairments -- depression
and anxiety/post-traumatic stress disorder -- were not severe.
In doing so, he considered the opinions of two medical experts:
Dr. Richard Schnable, Differ’s treating psychologist, and Dr.
Michael Schneider, the non-examining State agency psychological
consultant.
The ALJ gave “significant weight” to Dr.
Schneider’s opinion and “little weight” to Dr. Schnable’s, and
concluded, based on his own “common sense appraisal of the
totality of the evidence,” that Differ did not suffer from any
“severe” mental health conditions.
Admin R. at 23-24.
At the third step, the ALJ found that Differ’s severe
impairments did not meet or “medically equal” the severity of
one of the impairments listed in the Social Security
regulations.
See 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.
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He did not consider Differ’s alleged mental impairments at that
step.
The ALJ then concluded that Differ retained the RFC to
perform a full range of sedentary work with several exertional
limitations.
After applying the same weight to the experts’
respective opinions as at the second step, the ALJ crafted an
RFC that did not account for any mental impairments.
Finally,
finding that Differ had not performed any work at substantial
gainful activity since 1990, and thus had no past relevant work
that she could perform, see 20 C.F.R. § 404.1565, the ALJ
continued to step five, where he concluded that Differ could
perform jobs that exist in significant numbers in the economy.
Therefore, the ALJ found, Differ was not disabled within the
meaning of the Social Security Act.
III. Analysis
Differ takes issue with the treatment of her alleged mental
impairments at each of the second, third, and fourth stages of
the ALJ’s analysis.
In particular, she contends that the ALJ
erred by (1) relying on his own “common sense appraisal,” Admin.
R. at 4, and the opinion of Dr. Schneider to find that her
mental impairments were not “severe” in step two; (2) not
considering her mental impairments at all in step three; and (4)
improperly weighing the expert evidence when crafting her RFC in
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step four.
As discussed below, any error by the ALJ in his
treatment of the opinion evidence at step two may have been
harmless; but his treatment of that evidence at step four
constitutes reversible error.
The ALJ first considered the opinion of the non-examining
state agency consulting, Dr. Schneider.
He afforded Dr.
Schneider’s opinion “significant weight,” citing Dr. Schneider’s
conclusion that “there was ‘insufficient evidence to
substantiate the presence of [an affected or anxiety-related]
disorder.’”
Admin. R. at 23-24.
The opinions of state agency
psychological consultants
can be given weight only insofar as they are supported
by evidence in the case record, considering such
factors as the supportability of the opinion in the
evidence . . ., the consistency of the opinion with
the record as a whole, including other medical
opinions, and any explanation for the opinion provided
by the State agency . . . psychological consultant . .
. .
SSR 96-6p, 1996 WL 374188, at *2.
Such an opinion
may be entitled to greater weight than a treating
source’s medical opinion if the State agency . . .
psychological consultant's opinion is based on a
review of a complete case record that includes a
medical report from a specialist in the individual's
particular impairment which provides more detailed and
comprehensive information than what was available to
the individual's treating source.
Id. at *3.
But that is not the case here.
To the contrary,
Dr. Schneider appears to have reviewed only a limited set of
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Differ’s medical records -- far from the “complete case record”
-- and he did not review Dr. Schnable’s opinions or case notes,1
or the records of Differ’s visits to the Paincare Center, which
discuss her diagnoses of depression and anxiety and her
prescriptions related thereto.
In fact, Dr. Schneider explained
that he found the evidence that he reviewed to be “insufficient
. . . to assess [Differ’s] current psychological functioning.”
Admin. R. at 98.
“A state agency consultant’s opinion that is
based on an incomplete record, when later evidence supports the
claimant's limitations, cannot provide substantial evidence to
support the ALJ's decision to deny benefits.”
Snay v. Colvin,
2014 DNH 134, 11 (citing Alcantara v. Astrue, 257 Fed. Appx.
333, 334 (1st Cir. 2007)).
Accordingly, the ALJ erred in giving
significant weight to Dr. Schneider’s opinion and in relying on
the same when crafting Differ’s RFC.
The ALJ then discounted the opinion of Dr. Schnable,
Differ’s treating physician of several years.
Dr. Schnable
opined that Differ “meets criteria for a variety of mental
health disorders (PTSD, depression, anxiety, borderline
Dr. Schneider reviewed Differ’s records on August 30, 2012.
See Admin. R. at 98. He did not consider Dr. Schnable’s opinion
and records, which were submitted in early 2014, almost a year
and a half later. See Admin. R. at 529, 752, 880. Importantly,
Dr. Schnable’s records cover a period of treatment that both
pre- and post-dates Dr. Schneider’s review of the Differ’s
medical records.
1
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personality disorder), but I believe the most accurate and
encompassing is Dissociative Identity Disorder.”
529.
Admin. R. at
He further opined that her behavioral patterns, as a
result, “have greatly compromised [Differ’s] adult functioning
in all areas of life - relationship, self-care, vocational
pursuits, mood-regulation, etc.”
Id.
Dr. Schnable also
completed a mental impairment questionnaire, laying out the
signs and symptoms of Differ’s mental impairments, some of which
-- such as disorientation as to time and place, memory
impairment, and persistent anxiety -- he designated as
“intermittent” in an “attempt to identify [Differ’s]
dissociative process . . . .”
Admin. R. at 750.
Among other
limitations, he concluded that Differ would have “[d]ifficulty
completing a normal work day and workweek without interruptions
from psychologically based symptoms.”
Id. at 751.
The ALJ
afforded “little weight” to Dr. Schnable’s opinions.
The medical opinion of a treating source is entitled to
controlling weight when that opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record . . . .”
416.927.
20 C.F.R. §§ 404.1527,
When an ALJ decides not to give controlling weight to
the treating source’s opinion, he must give “good reasons” for
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the weight ascribed to that opinion.
§ 404.1527(d)(2).
20 C.F.R.
Those reasons must be “supported by evidence
in the case record and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons
for that weight.”
Social Security Ruling (“SSR”) 96-2p, Titles
II and XVI: Giving Controlling Weight to Treating Source Medical
Opinions, 1996 WL 374188, at *5 (S.S.A. 1996).
However,
weighing of medical opinion “is called for when the case record
contains inconsistent evidence, such as contradictory RFC
assessments.”
Littlefield v. Colvin, 2015 DNH 025, 15 (citing
20 C.F.R. §§ 404.1520b(a), 416.920b(a)).
When the case record
contains only one mental RFC assessment -- as it effectively
does here -- there is “nothing for the ALJ to put on the other
side of the scale to measure against [the sole] opinion.”
Id.
Under circumstances such as these, the ALJ erred by making an
RFC determination that failed to take Differ’s alleged mental
impairments into account -- a decision unsupported by any
medical opinion.2
Id.
Though it need not reach this issue in light of its conclusion
above, the court is also skeptical that the ALJ’s allusion to
Dr. Schnable’s “own treatment notes” failing to support his
opinion, Admin R. at 24, 28, amounts to the “good reasons”
required by 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
Absent any explanation of how Dr. Schnable’s notes undermine his
opinion, this bare reference to Dr. Schnable’s those treatment
2
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Having discounted the opinion of Differ’s treating
psychologist and erroneously exalted the opinion of a state
agency consultant who did not review the relevant evidence, the
ALJ fell back on his own “common sense appraisal” of the
evidence.
Admin. R. at 23.
Where, as here, the medical
evidence does not contain an RFC assessment by a medical expert,
an ALJ ordinarily cannot assess the claimant’s RFC himself,
“since bare medical findings are unintelligible to a lay person
in terms of [RFC].”
(1st Cir. 1990).
Gordils v. Sec’y of HHS, 921 F.2d 327, 329
Because no exception to that general rule
applies in this case, see Manso-Pizarro v. Sec’y of HHS, 76 F.3d
15, 17 (1st Cir. 1996), the ALJ erred by basing his assessment
of Differ’s mental RFC solely on his own evaluation of the
medical evidence.
IV.
Conclusion
The court is left to conclude that the ALJ, having
dismissed the opinion of Differ’s treating physician and relied
on that of a state agency consultant who did not review the
notes is insufficiently specific to make clear the ALJ’s reasons
for discounting that opinion. See Larocque v. Colvin, 2015 DNH
102, 11-12 (conclusory statement that opinion was inconsistent
with medical record did not amount to rationale supported by
substantial evidence); cf. Young v. Astrue, 2011 DNH 140, 31-32
(discounted weight given to treating physician’s opinion
supported by “good reasons” where physician’s own notes
indicated normal mental status).
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relevant evidence, “effectively substituted his own judgment for
medical opinion.”
Alcantara, 257 F. App'x at 334.
This was
error, for an ALJ “cannot assess the claimant's RFC himself . .
. .”
Levesque v. Colvin, 2014 DNH 191, at 2–3.
Therefore, the
court is constrained to reverse the ALJ's decision and remand
this case to the SSA for further consideration.3
For the foregoing reasons, Differ’s motion to reverse the
SSA’s decision4 is GRANTED, and the Acting Commissioner’s motion
to affirm it5 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, 2016
cc: Janine Gawryl, Esq.
Michael T. McCormack, AUSA
Differ also argues that the ALJ erred at the second step by
finding that her mental impairments were not severe and at the
fourth step by failing to give appropriate weight to her
husband’s opinion. The court need not reach these arguments
because the ALJ’s error in weighing the opinion evidence in
crafting her RFC necessitates reversal and remand in and of
itself. All the same, the court observes that, while an error
at the second step is generally considered harmless when “the
ALJ found at least one severe impairment and progressed to the
next step of the sequential evaluation,” McDonough v. Colvin,
2014 DNH 142, 27, the ALJ here invoked the same analysis of the
medical opinion evidence at step two as at step four.
3
4
Document no. 9.
5
Document no. 12.
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