Garneau v. U.S. Social Security Administration, Commissioner

Filing 12

///ORDER granting to the extent the case is remanded to the Acting Commissioner for further proceedings 8 Motion to Reverse Decision of Commissioner; and denying 10 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

James Garneau
v.

Case No. 16-cv-448-SM
Opinion No. 2017 DNH 218

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration

O R D E R

Pursuant to 42 U.S.C. § 405(g), James Garneau moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
(“DIB”) 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)).
With regard to 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.

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

2

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. 11, is part of the court’s

record and is summarized here, rather than repeated in full.
Garneau has worked as a psychiatric aide, snowmaker,
rewinder, bakery manager, sales and delivery person, and truck
driver.

On January 10, 2013, he injured his back at work, while

lifting a dryer.

Shortly thereafter, he was given a diagnosis

of back pain with radiculopathy.1

His medical records include

additional diagnoses of: degeneration of the lumbar
intervertebral disc; mechanical low back pain with significant
nonphysiologic findings; disc derangement and lumbar strain with

1

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

3

disc protrusion; a cognitive disorder; an adjustment disorder;
and a possible learning disability.
Garneau began receiving workers’ compensation benefits
shortly after his injury.
2013.

He applied for DIB in September of

He claimed that he was disabled as a result of two

medical conditions: (1) degenerative disc disease and disc
protrusion; and (2) an extra vertebrae in his back.
After Garneau filed his application for DIB, he was
referred to Dr. Elizabeth Hess, for a consultative psychological
examination.2

After she examined Garneau, Dr. Hess prepared a

Comprehensive Psychological Profile.

In it, she gave diagnoses

of: (1) “[c]ognitive disorder, not otherwise specified secondary
to chronic pain with diminished concentration,” Administrative
Transcript (hereinafter “Tr.”) 309; (2) “[a]djustment disorder
with mixed anxiety and depression,” id.; and (3) “[p]ossible
learning disability, not otherwise specified,” id.

In addition,

Dr. Hess gave the following opinions on Garneau’s then-current
level of functioning:
ACTIVITIES OF DAILY LIVING: This individual needs
assistance with shopping, cooking, paying bills,
maintaining his residence, grooming, and hygiene due
primarily to pain and difficulty with bending or
sustaining physical activity for any degree of time;
2

“A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the Social
Security Administration’s] request.” 20 C.F.R. § 404.1519.

4

however, he also has difficulty with concentrating and
needs his girlfriend to help him to remember
appointments, make financial decisions, etc.
SOCIAL FUNCTIONING: This individual interacts
appropriately and communicates effectively with
others. He does not see others as much as he used to
due to physical limitations. He does state that he
becomes irritable at times due to his pain.
UNDERSTANDING AND REMEMBERING INSTRUCTIONS: This
individual is capable of understanding and remembering
basic instructions with the exception of occasional
latency due to poor concentration. He may have some
difficulty understanding detailed instructions and
will have difficulty in remembering them due to poor
concentration and possibly due to cognitive
limitations.
CONCENTRATION AND TASK COMPLETION: This individual
can maintain attention and concentration for about
one-half hour. His persistence is limited primarily
by physical conditions, and also by limited
concentration. His pace will be very slow. He will
be slow in remembering what he is to do and keeping
track of where he is in a task.
REACTION TO STRESS AND ADAPATION TO WORK OR WORK-LIKE
SETTINGS: This individual is capable of making simple
decisions. He is not capable of maintaining regular
attendance or schedule due to physical concerns
primarily. He is able to interact appropriately with
supervisors and others. He does become frustrated and
irritable when he is not able to do things.
Tr. 308-09.
The record also includes an assessment of Garneau’s mental
condition by a non-examining consulting psychologist, Dr. Lewis
Lester.

After identifying two mental impairments, mood

disorders and anxiety disorders, Dr. Lester conducted a
psychiatric review technique (“PRT”) assessment based upon

5

Garneau’s medical records.3

Dr. Lester determined that Garneau

had no restrictions on his activities of daily living; had mild
difficulties in maintaining social functioning; had mild
difficulties in maintaining concentration, persistence or pace;
and had no repeated episodes of decompensation, each of extended
duration.

Then, Dr. Lester gave the following explanation for

his PRT assessment:
Claimant does not allege any mental impairments,
[medical evidence of record] does not reflect any
history of mental health diagnosis, treatment, or
psychiatric medication. When claimant was sent to a
[consultative examiner] in an effort to establish a
“Chronic Pain Syndrome”, his self-report of anxiety
and depression garnered a [consultative examiner]
diagnosis of Adjustment Disorder with mixed anxiety
and depression. These self-reported symptoms of
Anxiety [disorder] and Depressive [disorder] barely
rise above the level of what are ordinary and expected
reactions to his physical problems, pain and sequelae;
[consultative examiner] diagnosis of Cognitive
[disorder] is not supported by any evidence.
Associated mental limitations are mild & non-severe by
[Social Security Administration] standards.
Tr. 87.4
The record in this case includes approximately 40 documents
authored by six different medical professionals, each of which

3

The Social Security Administration uses the PRT to
evaluate the severity of mental impairments. See 20 C.F.R. §
404.1520a (describing the PRT).
4

“Sequelae” is the plural of “sequela,” which means “[a]
condition following as a consequence of a disease.” Stedman’s,
supra note 1, at 1752.

6

expresses opinions on Garneau’s physical residual functional
capacity (“RRC”).5

Those documents include, but are not limited

to: (1) a summary of a functional capacity evaluation performed
by an occupational therapist at Androscoggin Valley Hospital;
(2) a report on an independent medical examination performed by
Dr. Daniel O’Neill, for Sedgwick Claims Management Services,
Inc.;6 (3) a Lumbar Spine Medical Source Statement (“Spine
Statement”) completed by Garneau’s primary care provider, Nurse
Amanda Dustin; and (4) a Spine Statement completed by a treating
orthopedist, Dr. Thomas Rock.
Dr. Rock saw Garneau four times and examined him three
times.

In May of 2015, after Garneau’s most recent visit with

him, Dr. Rock completed a Spine Statement in which he identified
diagnoses of degenerative disc disease and multilevel lumbar
disc protrusion.

He also described the clinical findings

supporting those diagnoses, Garneau’s symptoms, and ten positive
objective signs of Garneau’s condition.

With respect to

functional limitations, Dr. Rock opined that Garneau: (1) could
sit for five minutes at a time before needing to get up; (2)

5

“Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. § 404.1545(a)(1).
6

Sedgwick was managing Garneau’s workers’ compensation

claim.

7

could not stand; (3) could sit and stand/walk for a total of
less than two hours in an eight-hour workday; (4) needed a job
that permits shifting positions at will from sitting, standing,
or walking; (5) needed to walk around during an eight-hour
workday; (6) needed to take unscheduled breaks; (7) could lift
less than 10 pounds, but only rarely; (8) could rarely twist;
(9) was likely to be “off task” for 20 percent of a workday;
(10) was incapable of even “low stress” work; and (11) was
likely to be absent from work more than four days per month as a
result of his impairment or treatment for it.
Dr. Rock did not examine Garneau in connection with
preparing his Spine Statement, but in an office note he wrote
approximately six months earlier, Dr. Rock documented his
musculoskeletal examination of Garneau:
On examination he is alert and oriented and in no
distress. He has stiffness with flexion and extension
and rotation of the lumbar spine. There is bilateral
lumbar paravertebral muscle spasm with tenderness. He
does have stiffness in his walking and lower extremity
neurologic is intact but he does have radiation of
pain and some numbness and tingling in the lower left
leg. Straight leg raising is positive on the left.
He has maintained strength in the lower leg with
ability to dorsiflex and plantarflex the left foot.
He has good circulation and sensation without
lymphedema.

8

Tr. 420.7

In a New Hampshire Workers’ Compensation Medical Form

(“Comp Form”) that Dr. Rock filled out on the same day he wrote
the office note quoted above, he stated that Garneau had no work
capacity and had reached maximum medical improvement.

He

restated those opinions in a Comp Form he filled out on the same
day he completed his Spine Statement in May of 2015.
After Garneau’s claim was denied at the initial level, he
received a hearing before an Administrative Law Judge (“ALJ”).
At the hearing, the ALJ took testimony from a vocational expert
(“VE”), to whom she posed a series of hypothetical questions.
The ALJ framed her second hypothetical this way:
I want you to assume . . . a younger individual with a
12th grade education, and past work as described. For
the purposes of this hypothetical, I want you to
assume that the individual can perform sedentary work
as defined by the [Dictionary of Occupational Titles].
But after one hour of sitting the individual would
need to stand without leaving the work station and
stretch for two to three minutes. I want you to
assume that the individual would have to avoid
climbing ladders, ropes, and scaffolds and crouching
would be limited to a rare basis, which I am defining
as less than or equal to 10 percent of the work day.
I want you to assume that other postural activities
could be performed on an occasional basis. I want you
to assume that reaching would be limited to frequently
7

“Dorsiflexion” is the “[u]pward movement (extension) of
the foot or toes or of the hand or fingers.” Dorland’s, supra
note 1, at 580. “Plantarflexion” is “bending the foot or toes
toward the plantar surface.” Id. at 753. “Lymphedema” is
“[s]welling (especially in subcutaneous tissues) as a result of
obstruction of lymphatic vessels or lymph nodes and the
accumulation of large amounts of lymph in the affected region.”
Id. at 1127.

9

as opposed to constantly. In addition, I want you to
assume that lifting objects from the floor would be
limited to a rare basis again, defined as less than or
equal to 10 percent of the work day. In addition, the
individual would have to avoid working on slippery wet
or elevated flooring and would also have to avoid
erratically moving surfaces.
Tr. 71-72.

According to the VE, a person with the foregoing RFC

could perform the jobs of surveillance systems monitor,
telephone solicitor, and fishing reel assembler.

The VE

testified that those same jobs would be available if the
hypothetical was amended to include these limitations:
[T]he individual would be limited to uncomplicated
tasks, which I have defined as tasks that typically
can be learned in 30 days or less. And due to
symptoms, concentration, persistence, and pace would
be diminished. But productivity would not be more
than 10 percent below the norm.
Tr. 73-74.

The VE further testified that the same jobs could be

performed by the person in the ALJ’s hypothetical if that person
also needed to stand and stretch every 30 minutes and was
limited to occasional overhead lifting.

However, the VE

testified that no jobs would be available to the person in the
ALJ’s hypothetical if he were to be absent from work at least
three days a month,8 or if his “concentration, persistence, and
pace was diminished to the point where productivity was 15 to 20
percent below the normal,” Tr. 74.

8

According to the VE, the customary tolerance for absence
from work is “[n]o more than two days a month.” Tr. 74

10

In response to questioning by claimant’s attorney, the VE
testified that the sedentary jobs he identified could be
performed by a person who “was limited to a maximum lift of 10
pounds and could only lift 12 inches off the ground to shoulder
level only, would need frequent postural changes every 15
minutes, was unable to crouch, balance, kneel, squat, or climb.”
Tr. 78.

But, he further testified that no jobs could be

performed by a person who: (1) “needed to change positions every
15 minutes and have a five minute break,” Tr. 79; or (2) was
limited to a total of two hours per day of sitting, standing,
and walking.
After the hearing, the ALJ issued a decision in which she
gave little weight to Dr. Rock’s opinions, little weight to Dr.
Hess’s report, and some weight to “the administrative findings
of fact made by the state agency non-examining medical and
psychological consultants,” Tr. 29.

The ALJ’s decision also

includes the following relevant findings of fact and conclusions
of law:
3. The claimant has the following severe impairment:
degenerative lumbar disc disease with evidence of
annular tear (20 CFR 404.1520(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments

11

in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
. . . .
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) except that after one
hour of sitting, he would need to stand without
leaving the work station and stretch for two to three
minutes. He would need to avoid climbing ladders,
ropes, or scaffolds. He could crouch on only a rare
basis (less than or equal to 10% of the workday). He
could perform other postural activities on an
occasional basis. He could reach on a frequent, but
not constant, basis. He could lift objects from the
floor on only a rare basis (again, meaning less than
or equal to 10% of the workday). He needs to avoid
working on slippery, wet, or elevated flooring, as
well as erratically moving surfaces. He is limited to
performing uncomplicated tasks (typically learned in
30 days or less); and due to symptoms, his ability to
concentrate, persist and maintain pace would be
diminished, but his productivity would not be more
than 10% below the norm.
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
Tr. 17, 19, 20, 30.

The ALJ concluded by finding that Garneau

was not disabled because he was capable of performing the three
jobs identified by the VE.

12

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
Garneau was not under a disability from January 10, 2013,
through July 27, 2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, 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.

13

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 20 C.F.R. § 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)).

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. Garneau’s Claims
Garneau claims that the ALJ erred by: (1) determining that
he did not have a severe mental impairment; (2) failing to give
proper weight to the opinions of Dr. Rock and Nurse Dustin; (3)
crafting an RFC based upon her own lay interpretation of raw
medical data rather than the opinion of a medical source; (4)
concluding that he had the RFC to perform sustained work-related
activities in a work setting on a regular and continuing basis;

14

and (5) relying upon VE testimony given in response to a flawed
hypothetical question.

Garneau’s first claim is without merit,

but taken in combination, his criticisms of the ALJ’s assessment
of his RFC warrant a remand.
1. Step Two
Garneau claims that at Step 2 of the sequential evaluation
process, the ALJ erred by failing to find that he had a severe
mental impairment.

More specifically, he frames his claim this

way: “The ALJ erred in according Dr. Hess’ report ‘little
weight’ (Tr. 26), and minimizing the interrelated impact of pain
and mental health symptoms on [his] ability to maintain the
attention and concentration needed for any work.”
Law (doc. no. 8-1) 19.

Cl.’s Mem. of

The court does not agree.

It is well established that “the Step 2 severity
requirement is . . . a de minimis policy, designed to do no more
than screen out groundless claims,” McDonald v. Sec’y of HHS,
795 F.2d 1118, 1124 (1st Cir. 1986) (citing Social Security
Ruling (“SSR”) 85-28, 1985 WL 56856 (S.S.A. 1985)), and that “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,’” id. (quoting SSR
85-28, 1985 WL 56856, at *3).

However, “[e]rrors at Step Two

15

are harmless as long as the ALJ found at least one severe
impairment, continued on with the sequential analysis, and
considered the effect of all impairments on the claimant’s
functional capacity.”

Therrien v. Berryhill, No. 16-cv-185-LM,

2017 WL 1423181, at *4 (D.N.H. Apr. 21, 2017) (citing Fortin v.
Colvin, No. 3:16-cv-30019-KAR, 2017 WL 1217117, at *10 (D. Mass.
Mar. 31, 2017)).
Here, after the ALJ deemed claimant’s mental impairments to
be non-severe, she found claimant’s back condition to be a
severe impairment, and continued on with the sequential
evaluation process.

It is beyond dispute that she considered

the effects of claimant’s non-severe mental impairment(s), given
both the limitation to uncomplicated tasks she included in
claimant’s RFC and her stipulation that claimant had a
diminished ability to concentrate, persist and maintain pace.
No more was necessary; if the ALJ erred at Step 2 by failing to
find that claimant had a severe mental impairment, any such
error was rendered harmless by the manner in which she
considered claimant’s mental impairment(s) thereafter.
Beyond that, the ALJ’s determination that claimant did not
have a severe mental impairment is supported by substantial
evidence in the form of the conclusion that Dr. Lester reached
after conducting his PRT assessment.

16

For his part, claimant

does not argue that Dr. Hess’s report establishes a severe
impairment under 20 C.F.R. § 404.1520a(c)(4), or fails to
establish an impairment that is non-severe under §
404.1520a(d)(1).

Moreover, while claimant hints at a Step 2

argument based upon the ALJ’s purportedly erroneous evaluation
of Dr. Hess’s opinions, he does not actually make such an
argument.
In sum, Garneau’s claim that the ALJ erred at Step 2
provides no basis for a remand.
2. Claimant’s Physical RFC
According to the VE, Garneau’s ability to work would be
completely precluded by any of one of four limitations presented
to him as Garneau’s, including three or more absences from work
each month.

While the ALJ did not specify in her RFC the number

of days per month that Garneau was likely to be absent from
work, she necessarily determined that he would not be absent
more than two days a month, given the VE’s testimony that the
customary tolerance for absence was “[n]o more than two days a
month.”

Tr. 74.

In his Spine Statement, Dr. Rock opined that Garneau would
be absent from work more than four days per month due to his
back condition or treatment for it.

17

If the ALJ had credited

that opinion, then she would have determined that Garneau was
disabled.

But she gave that opinion “little weight.”

Under the applicable regulations, the opinions of treating
sources such as Dr. Rock are entitled to controlling weight if
they are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [are] not inconsistent with
the other substantial evidence in [a claimant’s] case record.”
20 C.F.R. § 404.1527(c)(2).

When an ALJ does not give

controlling weight to a treating source’s opinion, she must
still determine how much weight to give that opinion by
considering the factors listed in 20 C.F.R. § 404.1527(c)(2)(6).

After an ALJ considers those factors, “[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 SSR 96-2p, 1996
WL 374188, at *4 (S.S.A. July 2, 1996)).
Finally, an ALJ must give “good reasons in [her] decision
for the weight [she] 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

18

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).
Jenness v. Colvin, No. 15-cv-005-LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015).

Here, the ALJ did not give good reasons

for discounting Dr. Rock’s opinion and, as a result, her
decision is not supported by substantial evidence.
The ALJ’s decision seems to suggest that the opinions in
Dr. Rock’s May 2015 Spine Statement are “of no probative value,”
Tr. 28, at least in part because that document “reflects quite
clearly that [Dr. Rock] was (as the claimant testified)
irritated that he had to complete yet another report on his
patient’s behalf,” id.

It is not clear what bearing Dr. Rock’s

ill temper might have on the substantive weight the ALJ was
obligated to give his opinion and, if anything, it might tend to
explain the terseness of some of Dr. Rock’s responses.
With respect to the opinion Dr. Rock gave in his May 2015
Spine Statement concerning Garneau’s likely absence from work,
the ALJ provided the following evaluation: “He states the
claimant will be absent more than four days per month, but notes
no change in the claimant’s condition or diagnosis since the day
he first evaluated him.”

Tr. 28.

discounting Dr. Rock’s opinion.

19

That is not a good reason for

For one thing, the ALJ did not explain the logic behind her
evaluation, and it is not apparent to the court.

Whether or not

Garneau’s condition or diagnosis ever changed during the course
of his treatment with Dr. Rock has no discernable bearing on the
reliability of Dr. Rock’s opinion.

Moreover, even if the ALJ’s

premise was not problematic, it is also directly contradicted by
the record.

In April of 2013, Dr. Rock reported: “Straight leg

raising isn’t particularly positive.”

Tr. 280.

In May of 2013,

he reported: “Straight leg raising isn’t particularly positive.”
Tr. 290.

In November of 2014, he reported: “Straight leg

raising is positive on the left.”

Tr. 420.

So, over the course

of his treatment relationship with Garneau, Dr. Rock did note a
change in Garneau’s condition in the form of increasingly
positive straight-leg raising test results.

Moreover, that

change is not insignificant; a positive straight-leg raising
test is one of the conditions that must be found to support a
determination that a claimant has a listing-level disorder of
the spine.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing

1.04.
In addition to her specific criticism of Dr. Rock’s opinion
that clamant would be absent from work more than four days a
month, the ALJ gave a more general evaluation:
The undersigned finds the opinions of Ms. Dustin and
Dr. Rock conclusory and against the weight of the

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record as a whole. The conclusions reached by these
treating sources are not supported by medically
acceptable signs, symptoms, and/or laboratory
findings, and are further based almost entirely on the
claimant’s subjective complaints and out of proportion
to the objective evidence obtained during and for the
course of treatment. There are no treatment records
to substantiate such degrees of limitation. The
undersigned has evaluated this evidence and finds that
even though these reports are from treating sources,
these opinions are inconsistent and not supported by
the medical evidence as a whole. Therefore, these
reports . . . are accorded little weight.
Tr. 28.

With respect to the specific opinion at issue, those

are not good reasons.
First of all, while the ALJ says that Dr. Rock’s opinion is
“not supported by medically acceptable signs, symptoms, and/or
laboratory findings,” Tr. 28, he expressed that opinion on a
form in which he also listed the following “positive objective
signs” of Garneau’s back impairment:
Reduced range of motion (“stiff low back”), Positive
supine straight leg raising test (Left at 40°, Right
at 40°), Positive seated straight leg raising test,
Abnormal gait, Sensory loss, Tenderness, Swelling,
Muscle spasm, Muscle atrophy, and Weight change.
Tr. 537.

To place those signs in context, the court notes that

degenerative disc disease qualifies as a listed impairment if it
results in compromise of a nerve root and is accompanied by:
Evidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is

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involvement of the lower back, positive straight-leg
raising test (sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04A.
Not only did Dr. Rock identify medical signs to support the
opinion he gave in his Spine Statement, the office note he wrote
in November of 2014 reports: (1) “stiffness with flexion and
extension and rotation of the lumbar spine,” Tr. 420; (2)
“stiffness in his walking,” id.; (3) “radiation of pain and some
numbness and tingling in the lower left leg,” id.; and (4)
positive straight-leg raising, see id.

Given those findings,

viewed in light of the criteria for Listing 1.04, it is
difficult to credit the ALJ’s determination that Dr. Rock’s
opinion was not substantiated by objective evidence obtained
during the course of treatment and documented in Garneau’s
treatment records.

In short, the purported lack of support for

Dr. Rock’s opinion is not a good reason for discounting it
because there was record support.
Similarly unpersuasive is the ALJ’s determination that Dr.
Rock’s opinion was inconsistent with the record as a whole.
While the record in this case includes a host of opinions, there
is only one other opinion regarding the number of days that
Garneau was likely to be absent from work: Nurse Dustin’s
opinion, expressed in her Spine Statement, that Garneau was
likely to be absent from work more than four days a month.

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On

this point, Dr. Rock’s opinion and Nurse Dustin’s opinion are
not just consistent; they are identical.9

Moreover, while both

Dr. O’Neill and the occupational therapist at Androscoggin
Valley Hospital who performed Garneau’s functional capacity
evaluation provided extensive opinions, neither of them
addressed the question of absence from work.

So, inconsistency

with the record as a whole is not a good reason for discounting
Dr. Rock’s opinion on absence from work.
And, indeed, given the lack of any on-point opinion to the
contrary, it would appear that by determining that Garneau would
be absent from work two days a month or fewer, the ALJ may have
run afoul of the rule that generally precludes ALJs from
interpreting raw medical data in functional terms and
determining a claimant’s RFC without support from an expert
opinion.

See Durgin v. Berryhill, No. 16-cv-451-SM, 2017 WL

3432611, at * (D.N.H. July 24, 2017) (citing Nguyen v. Chater,

9

In addition, Nurse Dustin’s Spine Statement includes a
list of positive objective signs that is very similar to Dr.
Rock’s list:
Reduced range of motion (“limited trunk [ILLEGIBLE]
flexion of back neg extension”), Positive supine
straight leg raising test (Left at 20°, Right at 40°),
Positive seated straight leg raising test, Abnormal
gait, Tenderness, Crepitus, Muscle spasm, Muscle
weakness, and Impaired sleep.
Tr. 526.

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172 F.3d 31, 35 (1st Cir. 1999); Santiago v. Sec’y of HHS, 944
F.2d 1, 7 (1st Cir. 1991)), R. & R. adopted by 2017 WL 3431956
(Aug. 9, 2017).

Be that as it may, inconsistency with the

record as a whole is not a good reason for discounting Dr.
Rock’s opinion on Garneau’s likely absence from work.
To sum up, the ALJ testified that absence from work three
or more days a month would preclude all work.

The ALJ did not

give good reasons for discounting Dr. Rock’s opinion that
Garneau was likely to miss four or more days of work a month.
Accordingly, this matter must be remanded.
Finally, the court notes that Garneau’s medical records
appear to document most if not all of the findings necessary to
support a determination that Garneau’s degenerative disc disease
qualifies as a listed impairment.

On remand, the Acting

Commissioner may wish to consider obtaining a consultative
physical examination for the purpose of ascertaining whether
claimant’s degenerative disc disease qualifies as a listinglevel disorder of the spine.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 10, is denied, and
Garneau’s motion to reverse that decision, document no. 8, is
granted to the extent that the case is remanded to the Acting

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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
October 10, 2017
cc:

Ruth D. Heintz, Esq.
Robert J. Rabuck, AUSA

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