Harvey v. US Social Security Administration, Acting Commissioner
ORDER granting 8 Claimant's Motion to Reverse Decision of Commissioner to the extent she seeks remand; and denying 9 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Corinna Leigh Harvey,
Case No. 17-cv-28-SM
Opinion No. 2017 DNH 238
Nancy A. Berryhill,
Social Security Administration,
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Corinna Harvey, moves to reverse or vacate the Acting
Commissioner’s decision denying her application for
Supplemental Security Income Benefits under Title XVI of the
Social Security Act.
See 42 U.S.C. §§ 1381-1383c (collectively,
The Acting Commissioner objects and moves for an
order affirming her decision.
For the reasons discussed below, claimant’s motion is
granted to the extent she seeks a remand for further
proceedings, and the Acting Commissioner’s motion is denied.
In October of 2013, claimant filed an application for
Supplemental Security Income (“SSI”) benefits, alleging that she
was disabled and had been unable to work since October 18, 2013.
Claimant was 39 years old at the time.
That application was
denied and claimant requested a hearing before an Administrative
Law Judge (“ALJ”).
In September of 2015, claimant, her representative, and an
impartial vocational expert appeared before an ALJ, who
considered claimant’s application de novo.
Five weeks later,
the ALJ issued her written decision, concluding that claimant
was not disabled, as that term is defined in the Act.
then sought review by the Appeals Council.
That request was
Accordingly, the ALJ’s denial of claimant’s application
for benefits became the final decision of the Acting
Commissioner, subject to judicial review.
claimant filed a timely action in this court, asserting that the
ALJ’s decision is not supported by substantial evidence.
Claimant then filed a “Motion for Order Reversing the
Decision of the Commissioner” (document no. 8).
the Acting Commissioner filed a “Motion for an Order Affirming
the Decision of the Commissioner” (document no. 9).
motions are pending.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 10), need not be
recounted in this opinion.
Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
“Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “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.”
Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence.
See 42 U.S.C. §§ 405(g),
See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991).
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
is something less than a preponderance of the evidence, so the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Parties’ Respective Burdens.
An individual seeking SSI benefits is disabled under the
Act if she is “unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.”
42 U.S.C. § 1382c(a)(3)(A).
The Act places a heavy initial burden on the claimant to
establish the existence of a disabling impairment.
See Bowen v.
Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v. Secretary of
Health & Human Services, 944 F.2d 1, 5 (1st Cir. 1991).
satisfy that burden, the claimant must prove, by a preponderance
of the evidence, that her impairment prevents her from
performing her former type of work.
See Manso-Pizarro v. Sec'y
of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996); Gray
v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985).
If the claimant
demonstrates an inability to perform her previous work, the
burden shifts to the Commissioner to show that there are other
jobs in the national economy that she can perform, in light of
her age, education, and prior work experience.
See Vazquez v.
Secretary of Health & Human Services, 683 F.2d 1, 2 (1st Cir.
See also 20 C.F.R. § 416.920(g).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience.
See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
6 (1st Cir. 1982).
Ultimately, a claimant is disabled only if
physical or mental impairment or impairments are of
such severity that [she] is not only unable to do
[her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy, regardless of whether such work
exists in the immediate area in which [she] lives, or
whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for
42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
See generally Barnhart v. Thomas, 540 U.S. 20, 24
Accordingly, she first determined that claimant had not
been engaged in substantial gainful employment since the date on
which she applied for benefits: October 30, 2013.
Next, she concluded that claimant suffers from the
following severe impairments: “obesity, asthma, shoulder
disorder, major depressive disorder, anxiety disorder, and
But, the ALJ determined that claimant’s
impairments, whether considered alone or in combination, did not
meet or medically equal one of the impairments listed in Part
404, Subpart P, Appendix 1.
Admin. Rec. at 18.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
“light” work, subject to the following limitations: “claimant is
limited to no climbing of ladders, ropes, or scaffolds; and
In addition, the claimant is limited to
routine day-to-day work; with no direct interaction with the
general public; she is capable of incidental superficial
interaction with the general public.”
Admin. Rec. at 20.
light of those restrictions, the ALJ concluded that claimant was
not capable of performing any past relevant work.
Id. at 25.
See also Id. at 81-82 (vocational expert’s testimony about
claimant’s work history).
At the final step of the analysis, the ALJ considered
whether there were any jobs in the national economy that
claimant might perform.
Relying upon the testimony of the
vocational expert, the ALJ concluded that, notwithstanding
claimant’s exertional and non-exertional limitations, “there are
jobs that exist in significant numbers in the national economy
that the claimant can perform.”
Id. at 25.
ALJ concluded that claimant was not “disabled,” as that term is
defined in the Act, from October 30, 2013, through the date of
her decision (November 24, 2015).
Claimant challenges the ALJ’s decision on two grounds,
asserting that she erred: (1) by improperly using her lay
knowledge (rather than securing medical experts) to determine
claimant’s residual functional capacity; and, somewhat
relatedly, (2) by failing to give appropriate weight to the
opinions of claimant’s treating sources.
Because the court
agrees that the ALJ’s assessment of the limitations imposed upon
claimant by reason of her mental impairment lacks adequate
support in the expert medical opinions of record, it will focus
exclusively on that issue.
Claimant suffers from bipolar disorder type II - a type of
manic-depressive illness defined by a pattern of depressive
episodes and hypomanic episodes, but not the full-blown manic
episodes characteristic of bipolar disorder type I.
of mental illness presents particular difficulty in the
disability context because one of its hallmark characteristics
is the fluctuating, episodic nature of symptoms.
As this court
One feature - perhaps the hallmark - of bipolar
disorder is that it is “episodic.” The very nature of
bipolar disorder is that people with the disease
experience fluctuations in their symptoms, so that any
single notation by a provider that a patient is
feeling better or has had a “good day” does not imply
that the condition has been treated. Accordingly,
where the claimant has a severe impairment of bipolar
disorder, the ALJ must not simply “cherry-pick” the
files of treating physicians to find evidence of good
results among evidence of symptoms. Likewise, a
treating source opinion that a claimant with bipolar
disorder is “stable” must be viewed in context. An
observation, for instance, that claimant is “stable in
the office” is not the same as an observation of
“stability” as to [claimant’s] ongoing bipolar
Walsh v. Astrue, 2012 DNH 034, 2012 WL 941781, at *4 (D.N.H.
Mar. 20, 2012) (citations, footnote, and internal punctuation
Here, claimant has “a very complicated history, as well as
[a] complicated medication regimen.”
Admin. Rec. at 539,
“Psychiatric History” completed by Bienvendido Manzanero, M.D.,
She has received outpatient psychiatric
counseling for years, most recently from the Genesis Group, in
Plymouth, New Hampshire.
She has also been hospitalized (both
voluntarily and involuntarily) as an inpatient psychiatric
patient on eleven occasions.
See, e.g., Id. at 537.
also presented numerous times to various hospital emergency
rooms, most often, it seems, with suicidal ideation or, at a
minimum, thoughts of harming herself.
See, e.g., Id. at 595,
To understand the difficult position in which the ALJ found
herself in considering claimant’s application, one must first
understand the timing of certain events.
On February 25, 2014,
claimant met with Rexford Burnette, Ph.D., who completed a
mental health evaluation report.
Admin. Rec. at 532-36.
Unfortunately, however, Dr. Burnette was provided with very few
of claimant’s medical records.
See Id. at 532 (noting, on
several occasions, the lack of medical records related to
claimant’s various mental health treatments).
Burnette based his opinions largely on his 60-minute interaction
with claimant (who, it seems, was having a “good day”), as well
as claimant’s “vague” oral recitation of her treatment history.
Indeed, Dr. Burnette recognized that although his opinions about
claimant’s symptoms “appear to be valid, there remain many
unanswered concerns about this claimant’s symptom presentation
and diagnosis which could not adequately be resolved in the
course of a one-hour clinical interview.
Perhaps a careful
review of her therapist’s notes (Amy Sullivan) may clarify some
of these issues.”
Id. at 534.
Two weeks later, on March 6, 2014, state agency examiner
Michael Schneider, Psy.D., completed a review of claimant’s
medical history and, affording Dr. Burnette’s report “great
weight,” he concluded that claimant suffers from no severe
mental impairment(s), and experiences only “mild” impairments in
her activities of daily living, social functioning, and
Admin. Rec. at 97-98.
See generally 20 C.F.R. §
416.922 (“An impairment or combination of impairments is not
severe if it does not significantly limit [the claimant’s]
physical or mental ability to do basic work activities.”).
Meanwhile, on March 4, 2014 (and obviously unknown to Dr.
Schneider), claimant had been admitted for psychiatric
hospitalization in Concord, New Hampshire.
hospitalized for nearly a week, until March 10.
Admin. Rec. at
And, just three days after her discharge, on March 13,
2014, claimant was taken to the emergency room at Spear Memorial
Hospital in Plymouth by her mother, after claimant expressed a
plan to cut her wrists.
She was transferred to Franklin
Hospital and involuntarily admitted for depression and suicidal
Id. at 1218.
Again, she remained hospitalized for
nearly a week (until March 19).
Approximately seven months later, on October 6, 2014,
claimant again presented to Spear Memorial Hospital, with
depression and suicidal ideation.
This time, she was
transferred to Hampstead Hospital, where she was admitted for
“mood swings, depression and thoughts of cutting her wrists with
Admin. Rec. at 537.
Once again, she remained
hospitalized for about one week (until October 13).
Subsequently, the claimant presented to the emergency room
at Spear Memorial Hospital twice, and the emergency room at
Concord Hospital once with depression and thoughts of harming
Admin. Rec. at 595 (October 20, 1994); 637 (April 17,
2015); and 653 (July 15, 2015).
Parenthetically, the court
notes that while the Commissioner attributes claimant’s various
lapses into deep depression and/or suicidal ideation to a lack
of compliance with her prescribed medications, the treatment
notes from those three emergency room visits do not suggest that
she had been non-compliant.
In short, then, after claimant’s 60-minute consultative
exam with Dr. Burnette, and after Dr. Schneider completed his
review of claimant’s medical records, claimant was hospitalized
at inpatient psychiatric care facilities three times (each for
approximately one week), and she presented to various hospital
emergency rooms another three times, for depression and suicidal
Given all of that evidence, the ALJ properly declined
to adopt Dr. Schneider’s opinion that claimant suffered from no
severe mental impairment.
But, because the ALJ gave “only some
weight” or “little weight” to the opinions of claimant’s
treating sources, Admin. Rec. at 24-25, that put the ALJ in the
position of having to rely upon her own lay opinion to infer the
extent to which the symptoms of claimant’s severe mental
impairment impact her residual functional capacity.
under the complex circumstances presented by this case, that is
As this court has observed:
The court of appeals for this circuit has repeatedly
held that since bare medical findings are
unintelligible to a lay person in terms of residual
functional capacity, the ALJ is not qualified to
assess residual functional capacity based on a bare
medical record. Accordingly, when assessing a
claimant’s RFC, the general rule is that an expert is
needed to assess the extent of functional loss.
That general rule, however, is subject to an
exception: the Commissioner is not precluded from
rendering common-sense judgments about functional
capacity based on medical findings, as long as the
Commissioner does not overstep the bounds of a lay
person’s competence and render a medical judgment.
Thus, an expert’s RFC evaluation is required where the
record is sufficiently ramified that understanding it
requires more than a layperson’s effort at a
commonsense functional capacity assessment.
Jabre v. Astrue, No. 11-CV-332-JL, 2012 WL 1216260, at *8
(D.N.H. Apr. 5, 2012) (citations and internal punctuation
omitted), report and recommendation adopted sub nom. Jabre v. US
Soc. Sec. Admin., No. 11-CV-332-JL, 2012 WL 1205866 (D.N.H. Apr.
Here, the expert medical opinions upon which the ALJ relied
most heavily - those of Michael Schneider, Psy.D., and Rexford
Burnette, Ph.D. - were decidedly unhelpful to the ALJ in
determining claimant’s RFC.
Both reports were prepared well
before claimant’s numerous recent hospitalizations and emergency
And, as Dr. Burnette himself recognized, his
report (upon which Dr. Schneider relied) was prepared without
the benefit of numerous relevant records about claimant’s
lengthy treatment history for mental health issues.
Given the circumstances, the most prudent course of
action would seem to be for the court to remand this matter
to the ALJ so she may obtain a new, more current
consultative mental examination of claimant (presumably
involving a complete review of all of claimant’s relevant
medical records) and an assessment of the extent to which
claimant’s mental impairment affects her ability to perform
See generally 20 C.F.R. 416.919.
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 8) is granted to the
extent she seeks a remand for further proceedings.
Commissioner’s motion to affirm her decision (document no. 9) is
Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated November 24, 2015, is vacated and this
matter is hereby remanded for further proceedings consistent
with this order.
The Clerk of Court shall enter judgment in
accordance with this order and close the case.
Steven J. McAuliffe
United States District Judge
November 14, 2017
D. Lance Tillinghast, Esq.
Robert J. Rabuck, Esq.
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