Crandlemere v. US Social Security Administration, Acting Commissioner

Filing 17

///ORDER granting 10 Motion to Reverse Decision of Commissioner; denying 13 Motion to Affirm Decision of Commissioner. The clerk of the court shall enter judgment in accordance with this order and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Steven R. Crandlemere
v.

Case No. 15-cv-516-JL
Opinion No. 2017 DNH 192

Nancy A. Berryhill,
Acting Commissioner, Social
Security Administration

O R D E R
Pursuant to 42 U.S.C. § 405(g), Steven Crandlemere moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423.

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).

However, the court “must uphold a denial of

social security disability 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.

That statement, document no. 16, is part of the court’s

record and will be summarized here, rather than repeated in
full.
In 2004, diagnostic imaging of Crandlemere’s lumbar spine
revealed degenerative disk disease at L5-S1 and mild
degenerative changes at L4-L5.

On June 3, 2009, while at work,

Crandlemere aggravated his back condition when he fell off a
standup mower after hitting a bump.
3

On November 19, 2009, he

underwent back surgery.

His post-surgery treatment has included

physical therapy, several different pain medications,1 and
various injections.2

On four occasions, starting on August 30,

2010, one of Crandlemere’s treating physicians, Dr. David Tung,
described Crandlemere’s surgery this way:

“failed back surgery

[status post] laminotomy/discectomy with left L5-S1
radiculopathy.”3

Administrative Transcript (hereinafter “Tr.”)

451, 460, 471, 486.
The record in this case includes more than a dozen opinions
on Crandlemere’s physical capacity for work.
reported in:

Those opinions are

(1) a Progress Note by Dr. Jie Cheng, a treating

physician; (2) New Hampshire Workers’ Compensation Medical Forms
(“Comp Forms”) completed by four different treating physicians,
Dr. Cheng (one form), Dr. Davis Clark (two forms), Dr. Clifford
Levy (eight forms), and Dr. Tung (four forms); (3) a Physical

In the year following his surgery, Crandlemere was
prescribed Ocycodone, Lidoderm patches, Flexeril, Neurotrin,
Roxycodone, and Percocet. In October of 2010, he was diagnosed
with opioid dependence.
1

Specifically, he was given a trans-foraminal epidural
steroid injection on May 17, 2010, and a sacroiliac joint
injection on October 15, 2010.
2

Radiculopathy is a “[d]isorder of the spinal nerve roots.”
Stedman’s Medical Dictionary 1622 (28th ed. 2006).
3

4

Residual Functional Capacity (“RFC”)4 Assessment performed by Dr.
Burton Nault, a non-examining state-agency physician; (4) a
Medical Source Statement of Ability to Do Work-Related
Activities (Physical) completed by Dr. Levy; (5) a Medical
Source Statement of Ability to Do Work-Related Activities
(Physical) completed by Dr. Ihab Ziada, a treating physician;
and (6) a physical RFC assessment performed by Dr. Marcia
Lipsky, a non-examining state-agency physician.

The opinions

that are relevant to the court’s analysis of the ALJ’s decision
are described below.
Dr. Nault’s RFC assessment is dated January 26, 2010,
approximately two months after Crandlemere’s back surgery.

In

it, he opined that by June 3, 2010, i.e., 12 months after the
alleged onset date (“AOD”) of Crandlemere’s claimed disability,
he would be able to lift/carry 20 pounds occasionally and 10
pounds frequently, stand/walk (with normal breaks) for about six
hours in an eight-hour work day, sit (with normal breaks) for
about six hours in an eight-hour workday, and push/pull with no

“Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. § 404.1519.
4

5

limitations other than those for lifting and carrying.5

Dr.

Nault further opined that Crandlemere would be able to
occasionally perform the postural activities of climbing (ramps,
stairs, ladders, ropes, and scaffolds), balancing, stooping,
kneeling, crouching, and crawling.
In the narrative portion of his RFC assessment, Dr. Nault
described Crandlemere’s back injuries and the treatment he had
received before his surgery.

He then described the effects of

Crandlemere’s surgery:
Follow up on 12/21/09 by Dr. Levy supported no
neurological deficits and a negative straight leg
raising. He recommended physiotherapy, which the
claimant states he is getting now, but is still having
some residual back pain.
The claimant currently states he is getting
improvement with physiotherapy and home exercise
program on a slow basis, helped by stretching
exercises and a treadmill.
Tr. 334.

Dr. Nault concluded his RFC assessment with the

following summary:
At this time the claimant has [medically determinable
impairments] established as noted above [i.e.,
degenerative disc disease of the lumbar spine status
post discectomy at L5-S1]. A listings level
impairment is not supported; however, he is still
considered totally disabled at this time, but it is
reasonable to assume that within 12 months of his AOD
Those exertional limitations correlate to a capacity for
light work. See 20 C.F.R. § 404.1567(b).
6
5

he should return to a functional capacity as addressed
in Section 1.
Tr. 334.

Finally, while he described Crandlemere as “totally

disabled” as of the date of his assessment, Dr. Nault did not
identify the specific limitations that rendered him so.6
On July 28, 2010, Dr. Levy completed a Comp Form.

In it,

he opined that on that date, despite the June 3, 2009, injury,
Crandlemere:

(1) had no limitation on his ability to sit,

stand, or walk; (2) had several postural limitations; and (3)
could return to work for a maximum of four to eight hours a day,
three to five days a week, so long as he did not have to
lift/carry more than ten pounds occasionally and five pounds
frequently.
Dr. Levy’s Medical Source Statement of Ability to Do WorkRelated Activities (Physical) is dated December 8, 2010.

In it,

he opined that Crandlemere could lift/carry 10 pounds
occasionally and less than 10 pounds frequently, that his
abilities to sit, stand, and walk were unaffected by his
impairment, and that he could occasionally perform the postural
activities of climbing, kneeling, crouching, crawling, and
That lack of specificity means that there is no frame of
reference for evaluating Crandlemere’s progress toward achieving
the functional capacity that Dr. Nault predicted.
6

7

stooping.

Finally, the form that Dr. Levy completed asked for

his opinion on whether Crandlemere was “capable of gainful
employment on a sustained basis,” Tr. 441, and Dr. Levy
responded: “Yes, 4-8 hours per day 3-5 hrs per day,”7 id.
Dr. Ziada’s Medical Source Statement of Ability to Do WorkRelated Activities (Physical) is dated July 16, 2013.

In it, he

opined that Crandlemere could lift/carry 10 pounds occasionally
and less than 10 pounds frequently, stand/walk (with normal
breaks) for less than two hours in an eight-hour work day, and
sit (with normal breaks) for less than six hours in an eighthour workday.

He also opined that Crandlemere needed to

“periodically alternate sitting and standing to relieve pain or
discomfort,” Tr. 1219, and was limited in his ability to
push/pull.

He then indicated that his conclusions regarding

exertional limitations were supported by the following findings:
“lumbar spondylosis with radiculopathy [and] back pain with

Given Dr. Levy’s prior opinion that Crandlemere could work
four to eight hours per day, three to five days per week, see
Tr. 435, the court presumes, as does the Acting Commissioner,
that in his December 8 Medical Source Statement, Dr. Levy meant
to say the same thing, and that his reference to “3-5 hrs per
day,” Tr. 441, rather than “3-5 days per week,” was a
scrivener’s error.
7

8

muscle spasm.”8

Tr. 1219.

Dr. Ziada further opined that

Crandlemere could never perform the postural activities of
climbing, balancing, stooping, kneeling, crouching, and
crawling, and he supported his opinion by stating that “because
of back pain [Crandlemere] is limited to moving [and] he
requires meds, [and must be able to] change position
frequently.”

Id.

In addition, Dr. Ziada identified several

manipulative and environmental limitations.
opined that Crandlemere:

Finally, Dr. Ziada

(1) was “limited to jobs where he . .

. [would be] would be allowed to take unscheduled breaks to
relieve pain or discomfort,” Tr. 1221; (2) was not “capable of
gainful employment on a sustained basis,” id.; and (3) was
likely, on account of his condition, “to be absent from work
three or more times per month,” id.
Crandlemere first applied for DIB on July 29, 2009.

His

quest for DIB has followed what can only be described as a long
and winding road.

To begin, Crandlemere’s claim was denied at

the initial level, and then he received an unfavorable decision

Spondylosis is “[a]nkylosis of the vertebra, often applied
nonspecifically to any lesion of the spine of a degenerative
nature.” Stedman’s, supra note 3, at 1813. Ankylosis is
“[s]tiffening or fixation of a joint as a result of a disease
process, with fibrous or bony union across the joint; fusion.”
Id. at 95.
9
8

from an Administrative Law Judge (“ALJ”).

Crandlemere appealed

the ALJ’s decision to this court, which remanded.

See

Crandlemere v. Astrue, No. 11-cv-529-SM, 2013 WL 160334 (D.N.H.
Jan. 15, 2013).

In his remand order, Judge McAuliffe

identified, as reversible error, the ALJ’s reliance on Dr.
Nault’s opinion when the prediction in that opinion, i.e., that
Crandlemere would no longer be disabled as of June 3, 2010,
“appear[ed] to have been incorrect.”

Id. at *4.

As evidence of

the incorrectness of Dr. Nault’s prediction, Judge McAuliffe
pointed to the opinions contained in nine Comp Forms completed
by Drs. Levy and Tung between February 1, 2010, and January 14,
2011.

Judge McAuliffe described Dr. Levy’s opinions this way:

By July of 2010, Dr. Levy concluded that claimant had
recovered to the point that he was capable of lifting
a maximum of 10 pounds occasionally and five pounds
frequently, and could work a maximum of four to eight
hours a day, three to five days a week. At best,
then, Dr. Levy believed claimant was capable of
performing the exertional requirements of sedentary
work, on a less-than full-time basis. Dr. Levy
repeated that opinion several times in the months that
followed. But, he never concluded that claimant was
capable of a return to full time work . . . .
Id. (emphasis in the original, citations to the record omitted).
While Crandlemere’s 2009 claim was working its way through
the review process, he filed a second claim, which was
consolidated with his first one, in a decision by the Appeals
10

Council (“AC”) that vacated the ALJ’s unfavorable decision on
Crandlemere’s second claim.
Crandlemere received a hearing before an ALJ on his
consolidated claim.

At that hearing, a vocational expert (“VE”)

testified that a person with the RFC described in Dr. Ziada’s
Medical Source Statement would not be able to perform any jobs.
After the hearing, the ALJ issued an unfavorable decision.

The

AC reversed and remanded.
On remand, Crandlemere received yet another ALJ hearing.
At that hearing, the ALJ asked the VE to consider “someone of
similar age, education, and vocational background who is limited
to sedentary work with a sit/stand option at will,” Tr. 717, and
completed the hypothetical by asking the VE to consider a person
who
[c]an occasionally perform all of the postural
maneuvers. Occasionally means up to a third of the
work day. Is limited to simple, unskilled work, and
is able to maintaining attention and concentration for
two-hour increments throughout an eight-hour work day
and 40-hour work week.
Id.

The VE testified that a person fitting the ALJ’s

hypothetical could perform the jobs of document preparer,
addresser, cutter and paster, stuffer, and eyeglass frame
polisher.
11

After the hearing, the ALJ issued a decision in which he
gave:

(1) significant weight to the opinions in Dr. Nault’s

January 2010 RFC assessment; (2) significant weight to the
opinions in Dr. Levy’s Medical Source Statement, except for the
limitation to working “4-8 hours per day, 3-5 hours per [week],”
Tr. 674, to which the ALJ gave limited weight; (3) lesser weight
to the opinions in Dr. Ziada’s Medical Source Statement; (4)
some weight to the opinions in Dr. Cheng’s Progress Note; and
(5) limited weight to the opinions in the Comp Forms completed
by Drs. Cheng, Clark, and Levy.

The ALJ did not specifically

mention the Comp Forms completed by Dr. Tung.
The ALJ’s decision also includes the following relevant
findings of fact and conclusions of law:
4. Through the date last insured, the claimant had
the following severe impairments: degenerative disc
disease of the lumbar spine, a right knee meniscus
tear, obesity, a learning disorder, and depression (20
CFR 404.1520(c)).
. . . .
6. After careful consideration of the entire record,
I find that, through the date last insured, the
claimant had the residual functional capacity to
perform sedentary work as defined in 20 CFR
404.1567(a) except he would need to be allowed a
sit/stand option at will; he could occasionally climb,
balance, stoop, kneel, crouch, and crawl; he is
limited to simple-unskilled work; and he is able to
maintain attention and concentration for two-hour
increments throughout an eight-hour workday.
12

. . . .
11. Through the date last insured, considering the
claimant’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that the claimant could have performed (20 CFR
404.1569 and 404.1569(a)).
Tr. 666, 668, 677.

The ALJ concluded by finding that

Crandlemere was not disabled because he was capable of
performing the five jobs identified by the VE.
Claimant appealed the ALJ’s decision to the AC, but the AC
deemed the appeal untimely and declined to consider it.

This

action followed.
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).

The only question

in this case is whether the ALJ correctly determined that
Crandlemere was not under a disability from June 3, 2009,
through September 30, 2011, that last date on which he was
insured for disability insurance benefits.
13

To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ a
five-step process.

See 20 C.F.R. § 404.1520.

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, which outlines the same five-step process as
the one prescribed in § 404.1520).
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)).

14

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)).
B.

Crandlemere’s Claims

Crandlemere claims that the ALJ erred by:

(1) making

several mistakes in evaluating the medical opinions on his
physical RFC; (2) failing to include a limitation to performing
at “below average pace” in his mental RFC; and (3) determining,
at step 5, that the jobs the VE identified existed in
significant numbers in the national economy, and relying on VE
testimony that was not consistent with the Dictionary of
Occupational Titles.

Claimant’s first argument is persuasive,

and dispositive.
With respect to the ALJ’s evaluation of the medical
opinions, Crandlemere claims that the ALJ committed these
errors:

(1) failing to give controlling weight to the opinions

in Dr. Ziada’s Medical Source Statement; (2) giving inadequate
reasons for giving significant weight to the opinions in Dr.
15

Nault’s RFC assessment; (3) erroneously crediting some of the
opinions in Dr. Levy’s Medical Source Statement but discounting
Dr. Levy’s limitation to working four to eight hours a day,
three to five days a week; (4) failing to evaluate the opinions
in the Comp Forms completed by Drs. Clark and Tung, and in
particular Dr. Tung’s recurrently stated opinion that he needed
to change positions frequently; and (5) failing to explain the
exclusion of one of the limitations identified in Dr. Cheng’s
Treatment Note, i.e., that he required a job that allowed a
“frequent change of position,” Tr. 336.

Taken in combination,

the ALJ’s treatment of the opinions rendered by Drs. Ziada and
Nault warrants a remand.
The court begins with the ALJ’s evaluation of the opinions
in Dr. Ziada’s Medical Source Statement.

Dr. Ziada was a

treating physician, and the ALJ acknowledged as much in his
decision.

Under the applicable regulations, the opinion of a

treating source is entitled to controlling weight if it “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [a claimant’s] case record.”
§ 404.1527(c)(2).

20 C.F.R.

When an ALJ does not give controlling weight

to the opinion of a treating source, he must still determine how
16

much weight to give that opinion by considering these factors:
(1) the length of the treatment relationship and the frequency
of examination; (2) the nature and extent of the treatment
relationship; (3) the supportability of the opinion; (4) the
consistency of the opinion with the record as a whole; (5) the
specialization of the source offering the opinion; and (6) any
other relevant factors.

See § 404.1527(c)(2)-(6).

After an ALJ

performs the analysis described above, “[i]n many cases, a
treating source’s opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the test
for controlling weight.”

Hunt v. Colvin, No. 16-cv-159-LM, 2016

WL 7048698, at *7 (D.N.H. Dec. 5, 2016) (quoting Social Security
Ruling 96-2p, 1996 WL 374188, at *4 (S.S.A. July 2, 1996)).
Finally, an ALJ must give “good reasons in [his] decision for
the weight [he] give[s] [a claimant’s] treating source’s
opinion.”

20 C.F.R. § 404.1527(c)(2).

To meet the “good reasons” requirement, the ALJ’s
reasons must be both specific, see Kenerson v. Astrue,
No. 10-cv-161-SM, 2011 WL 1981609, at *4 (D.N.H. May
20, 2011) (citation omitted), and supportable, see
Soto–Cedeño v. Astrue, 380 Fed. Appx. 1, 4 (1st Cir.
2010). In sum, the ALJ’s reasons must “offer a
rationale that could be accepted by a reasonable
mind.” Widlund v. Astrue, No. 11-cv-371-JL, 2012 WL
1676990, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v.
Astrue, C.A. No. 09–11858, 2011 WL 1155195, at *4 (D.
Mass. Mar. 21, 2011)), report and recommendation
adopted by 2012 WL 1676984 (D.N.H. May 14, 2012).
17

Jenness v. Colvin, No. 15-cv-005-LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015).
The ALJ gave Dr. Ziada’s opinions “lesser weight,” Tr. 674,
and explained his evaluation of those opinions this way:
First, while I acknowledge that [Dr. Ziada] does have
a treatment history with the claimant, he only
specializes in internal medicine and thus lacks any
particularized expertise in the claimant’s alleged
physical impairments. Second, while he provided one
of the most recent assessments of record, he provides
very limited narrative support or citations to the
record in support of his very restricted range of
part-time work, but rather largely check-marks a
standard form. This provides limited support for his
substantial findings as described.
Tr. 674.

There are several problems with the manner in which

the ALJ evaluated Dr. Ziada’s opinions.
First, while the ALJ’s decision to give Dr. Ziada’s
opinions lesser weight necessarily signals a decision not to
give them controlling weight, the ALJ never said so directly,
and did not frame his consideration of Dr. Ziada’s opinions in
terms of the controlling-weight analysis described in the
applicable regulations.

But, to give the ALJ’s decision the

benefit of the doubt, the court will presume that he concluded
that Dr. Ziada’s opinions were not “supported by medically
acceptable clinical and laboratory diagnostic techniques,” 20
C.F.R. § 404.1527(c)(2), and, for that reason, saw no need to
18

reach the issue of consistency with the other evidence in the
record.

However, the ALJ did not give good reasons for

concluding that Dr. Ziada’s opinions were not adequately
supported.
The ALJ criticizes Dr. Ziada’s opinion for lacking
narrative support, but Dr. Ziada did identify clinical findings
for his exertional limitations (“lumbar spondylosis with
radiculopathy [and] back pain with muscle spasm,” Tr. 1219), and
he offered a narrative explanation for his postural limitations
(“because of back pain he is limited to moving [and] he requires
meds, [and must be able to] change position frequently,” id.).
That is more support than was provided by Dr. Levy for opinions
to which the ALJ gave significant weight, see Tr. 438-41, 674,
and at least as much support as was provided by Dr. Nault for
opinions to which the ALJ also gave significant weight, see Tr.
327-34, 674.9

Beyond that, the day before Dr. Ziada gave his

The Acting Commissioner contends that “Dr. Nault provided
a much more detailed explanation for his opinion (with citations
to relevant evidence and objective data) than Dr. Ziada.”
Resp’t’s Mot. to Affirm (doc. no. 13-1) 8. But the bulk of Dr.
Nault’s narrative explanation is devoted to Crandlemere’s
condition before his surgery. The only objective data relating
to Crandlemere’s post-surgery condition is a reference to a lack
of “neurological deficits and a negative straight leg raising,”
Tr. 334, as of December 21, 2009, i.e., about a month after
Crandlemere’s surgery.
9

19

opinion, he examined Crandlemere and made these findings:
“tender lower back L3-4 level / loss of lumbar lordosis10 / spasm
[of the] paraspinal muscles.”

Tr. 1268.

The ALJ does not even

mention Dr. Ziada’s examination in his discussion of Dr. Ziada’s
opinions and, necessarily, makes no argument that the manner in
which Dr. Ziada examined Crandlemere did not constitute a
“medically acceptable clinical . . . diagnostic technique[],” 20
C.F.R. § 404.1527(c)(2).

In short, the ALJ’s characterization

of Dr. Ziada’s opinion as poorly supported is, itself, poorly
supported.
Equally problematic is the ALJ’s criticism of Dr. Ziada’s
opinion for having been expressed on a check-box form.

To be

sure, there is authority for the proposition that an “ALJ may
‘permissibly reject[] . . . check-off reports that [do] not
contain any explanation of the bases of their conclusions.’”
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting
Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); citing
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001)).

But

Dr. Ziada’s check-box form did include explanations, which the
ALJ largely ignored.

Moreover, while “‘check-box’ forms that

“Lumbar lordosis” is “the normal, anteriorly convex
curvature of the lumbar segment of the vertebral column.”
Stedman’s, supra note 3, at 1119.
20
10

require little or no explanation . . . are ‘weak evidence at
best’ in the disability context, and . . . are particularly so .
. . when compared to . . . more detailed accounts,” Hevner v.
Comm’r Soc. Sec., 675 F. App’x, 182, 184 (3d Cir. 2017) (citing
Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)), the
opinions to which the ALJ gave significant weight are no more
detailed than the opinions expressed on Dr. Ziada’s Medical
Source Statement.

Finally, the fact that an opinion is

expressed on a check-box form “is not a proper basis for
rejecting [such] an opinion [when it is] supported by treatment
notes.”

Esparza v. Colvin, 631 F. App’x 460, 462 (9th Cir.

2015) (citing Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
2014)).

Here, the record includes a treatment note by Dr. Ziada

dated one day before he prepared his Medical Source Statement,
see Tr. 1267-70, and while that note seems to support Dr.
Ziada’s opinion, the ALJ said nothing about it.

In sum, under

the circumstances of this case, the fact that Dr. Ziada’s
opinion is expressed on a check-box form is not a good reason
for discounting it.
Because the ALJ’s characterization of Dr. Ziada’s opinion
as unsupported is itself unsupportable, and because the ALJ did
not even address the second controlling-weight factor,
21

consistency with the other evidence of record, the court agrees
with claimant that the ALJ failed to give good reasons for
declining to give controlling weight to Dr. Ziada’s opinions.
However, even if the ALJ had given good reasons for
declining to give controlling weight to Dr. Ziada’s opinions, he
did not give good reasons for giving those opinions “lesser
weight.”

As a preliminary matter, like the explanation for

discounting a treating source’s opinion at issue in Jenness, the
explanation offered by the ALJ in this case “suffers from a
general lack of specificity,” 2015 WL 9688392, at *7.

That is,

rather than being tied to any of the specific opinions expressed
in Dr. Ziada’s Medical Source Statement, the ALJ’s explanations
are “generic criticisms seemingly directed to Dr. [Ziada’s]
statement as a whole.”

Id.

That flies in the face of the ALJ’s

obligation to “provide specific reasons for assigning weight to
a treating source’s opinion.”

Id.

That said, the court turns to the ALJ’s consideration of
the six factors for weighing medical opinions.
404.1527(c)(2)-(6).

See 20 C.F.R. §

As the court has already explained, the

ALJ’s consideration of supportability, see § 404.1527(c)(3), is
fundamentally deficient.

While the ALJ acknowledged Dr. Ziada’s

status as a treating source, he said nothing further about the
22

length of the treatment relationship, the frequency of
examination, or the nature and extent of the treatment
relationship.

See § 404.1527(c)(2)(i)-(ii).

Similarly, the ALJ

said nothing about the consistency of Dr. Ziada’s opinions with
the record as a whole, see § 404.1527(c)(4), nor did he identify
any relevant “other factor,” see § 404.1527(c)(6).
apart from a

Rather,

purported lack of supportability, the ALJ rested

his evaluation of Dr. Ziada’s opinion on the fact that Dr. Ziada
is an internist rather than an orthopedist, see § 404.1527
(c)(5).
The ALJ’s bare observation that Dr. Ziada is an internist
is not a good reason for discounting his opinions.

As noted,

the ALJ said nothing about the nature of Dr. Ziada’s treatment
relationship with Crandlemere.

However, the record demonstrates

that as far back as September of 2012, Dr. Ziada had been
prescribing pain medication for Crandlemere’s back condition,
and was concerned enough about that condition to refer him for
an orthopedic consultation with Dr. Clark.

Dr. Clark, in turn,

diagnosed Crandlemere with right lumbar radiculitis and
completed a Comp Form in which he opined that Crandlemere had no
work capacity.

The record also demonstrates that the day before

Dr. Ziada rendered the opinion at issue, he:
23

(1) examined

Crandlemere and noted a tender lower back at the L3-4 level, a
loss of lumbar lordosis, and spasm of the paraspinal muscles;
(2) diagnosed Crandlemere with chronic back pain and lumbar
radiculopathy; (3) prescribed pain medication; and (4) ordered
an MRI to further explore Crandlemere’s lumbar radiculopathy.
In light of Dr. Ziada’s history of treating Crandlemere for his
back condition, the mere fact that he is an internist is not a
good reason to give his opinions “lesser weight.”
So, the ALJ failed to give good reasons for the weight he
gave to Dr. Ziada’s opinions.

Moreover, there are significant

problems with the ALJ’s determination that Dr. Nault’s opinion
was entitled to significant weight.
Completed in January of 2010, about two months after
Crandlemere’s surgery, Dr. Nault’s RFC assessment did not
describe Crandlemere’s then-current level of functioning but,
rather, predicted his RFC as of June 3, 2010.

To borrow a

phrase from Dr. Nault’s opinion, “it is reasonable to assume,”
Tr. 334, that his prediction of Crandlemere’s RFC four months
hence was based upon an assumption that his surgery had been
successful.

But, in August of 2010, a treating physician began

describing Crandlemere’s November 2009 procedure as “failed back
surgery.”

Tr. 451.

Obviously, that undercuts the value of Dr.
24

Nault’s opinion as substantial evidence for the projected RFC he
assigned Crandlemere.
For his part, the ALJ did not characterize Dr. Nault’s
opinion as a January 2010 prediction of Crandlemere’s RFC in
June of 2010.

To the contrary, he wrote of “the remote

assessment of State examiner Burton Nault, M.D., dated January
2010, which found that the claimant could perform a wide range
of light-exertional work with occasional postural activities.”
Tr. 674 (emphasis added).

Dr. Nault “found” no such thing.

He

found that Crandlemere was disabled, and predicted that his
disability would dissipate by June.11

After pointing out that

Dr. Nault “is an Agency physician familiar with the disability
program,” Tr. 674, the ALJ further explained his decision to
give significant weight to Dr. Nault’s opinions:
Second, while [Dr. Nault’s] opinion is fairly remote
in time, and thus did not consider the recent evidence
of record, this more recent evidence does not support
a substantial erosion of the occupational base.
Third, the residual functional capacity above does
contain an additional allowance that the claimant be
limited to sedentary, rather than light work, and that
he be allowed a sit-stand option at will, which would
adequately allow for his reported residual pain as
As Judge McAuliffe explained more than four years ago,
the ALJ who wrote the very first decision on Crandlemere’s claim
made the same mistake, treating Dr. Nault’s opinion as an
assessment of a then-current RFC rather than a prediction of a
future RFC. See Crandlemere, 2013 WL 160334, at *4.
11

25

described above and is more consistent with the
treating orthopedist above. For these reasons, I
afford the assessment of Dr. Nault significant weight,
yet further reduce the claimant to a range of
sedentary work.
Tr. 674.
While the ALJ determined that “this more recent evidence
does not support a substantial erosion of the occupational
base,” he did not identify the “more recent evidence” to which
he was referring.

The Acting Commissioner attempts to rectify

that omission by pointing to both medical data and opinion
evidence that, in her view, support the ALJ’s evaluation of Dr.
Nault’s prediction.12

However, it is well established that “the

court cannot affirm the ALJ’s decision based upon rationales
left unarticulated by the ALJ.”

Jenness, 2015 WL 9688392, at *7

(citing High v. Astrue, No. 10-cv-69-JD, 2011 WL 941572, at *6
Among other things, the Acting Commissioner relies on a
set of radiology reports that post-date Dr. Nault’s RFC
assessment, suggesting that findings such as “[n]o evidence of
reherniation,” Tr. 411, validate Dr. Nault’s opinions. Claimant
relies on those same radiology reports, suggesting that findings
such as “enhancing scar tissue on the laminotomy site and around
the left S1 nerve root,” Tr. 409, invalidate Dr. Nault’s
opinions. Reading arguments by lawyers that rest upon their own
interpretations of the very same radiology reports aptly
illuminates the rationale for the rule against allowing ALJs to
fashion RFCs by interpreting raw medical data. See Schwarz v.
Berryhill, No. 16-cv-163-SM, 2017 WL 3736789, at *6 (D.N.H. Aug.
30, 2017) (citing Childers v. Colvin, No. 14-cv-270-JL, 2015 WL
4415129, at *2 (D.N.H. July 17, 2015)).
12

26

(D.N.H. Mar. 17, 2011)).

Thus, the ALJ’s undeveloped reference

to “more recent evidence” is an insufficient basis for crediting
Dr. Nault’s prediction.13

Turning to the ALJ’s third reason for

giving significant weight to Dr. Nault’s opinion, whatever else
it may be, the ALJ’s decision to assign Crandlemere an RFC that
was more restrictive than Dr. Nault’s RFC can hardly be
considered a reason for giving Dr. Nault’s opinion significant
weight.

Indeed, the only logical conclusion to be drawn from

the ALJ’s decision to assign Crandlemere a more restrictive RFC
than Dr. Nault did is that that ALJ found that Dr. Nault’s
opinion overstated Crandlemere’s RFC and, consequently,
discounted it rather than crediting it.

In any event, the ALJ’s

deviation from the RFC expressed in Dr. Nault’s opinion is not
substantial evidence to support the ALJ’s assignment of
significant weight to that opinion.
Moreover, at least some of the “more recent evidence”
directly undercuts the validity of Dr. Nault’s prediction. A
big part of the “objective data” that the Acting Commissioner
touts as supporting Dr. Nault’s opinion is Crandlemere’s
negative straight leg raising test on December 21, 2009. But,
on April 27, 2010, Crandlemere was unable to perform a straight
leg raise “due to extreme pain,” Tr. 369, and he had positive
straight leg raising tests on August 30 and October 10, 2010,
see Tr. 445, 455. So, to the extent that Dr. Nault’s prediction
was premised upon a presumption of continued negative straight
leg raising test results, his prediction is undercut rather than
supported by the more recent evidence on that issue.
13

27

To summarize, the ALJ did not give good reasons for the
weight he gave to Dr. Ziada’s opinions, and his decision to
assign substantial weight to Dr. Nault’s opinions is not
supported by substantial evidence.

Taken together, the ALJ’s

errors in evaluating those opinions warrant a remand.
IV. Conclusion
For the reasons described above, the Acting Commissioner’s
motion for an order affirming her decision14 is denied, and
Crandlemere’s motion to reverse that decision15 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.
_______________ ___________
Joseph Laplante
United States District Judge
Dated:
cc:

September 15, 2017

Janine Gawryl, Esq.
T. David Plourde, AUSA

14

Document no. 13.

15

Document no. 10.
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