McRedmond v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER granting 7 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. Case is remanded for further proceedings under sentence four of § 405(g). Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sara McRedmond
v.

Civil No. 17-cv-127-JD
Opinion No. 2017 DNH 242

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration

O R D E R
Sara McRedmond seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of Social
Security, denying her application for disability insurance
benefits under Title II and supplemental security income
benefits under Title XVI of the Social Security Act.

McRedmond

moves to reverse, contending that the Administrative Law Judge
(“ALJ”) failed to properly consider the opinion of Dr. Dinan and
erred in assessing her residual functional capacity.

The Acting

Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276

F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).
scintilla.”

Substantial evidence is “more than a mere

Richardson v. Peralles, 402 U.S. 389, 401 (1971).

When the record could support differing conclusions, the court
must 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)
(internal quotation marks omitted).
Background
McRedmond is thirty-nine years old.

She completed two

years of college and earned an Associate’s Degree in office
management.
a cleaner.

McRedmond previously worked as an office clerk and
In support of her applications for benefits,

McRedmond represented that her ability to work was impaired by
mental and physical limitations.
Jennifer Whitcher, LCMH, provided mental health counseling
to McRedmond.

On January 17, 2012, Whitcher completed a form

titled “Psychological Capacities” for McRedmond.

Whitcher

stated that McRedmond had been diagnosed with PTSD and a major
depressive disorder that was recurrent and moderate.

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Whitcher

indicated that McRedmond had no deficit and was not limited or
had only mild limitations in her abilities to do most
activities.

She indicated moderate limitations in maintaining

attention, sustaining routine without supervision, and
performing at a consistent pace.
were found.

No more severe limitations

Whitcher, however, stated that McRedmond was not

capable of working.
On February 22, 2012, William Dinan, Ph.D., did a
consultative psychological examination of McRedmond.

Dr. Dinan

observed mild signs of depression and moderate signs of anxiety.
He also found that McRedmond was alert and oriented, her memory
was adequate, but her concentration was inconsistent.

Based on

McRedmond’s description of her history and activities, Dr. Dinan
found that McRedmond’s abilities to do a variety of activities
and to understand and remember instructions were unimpaired.
With respect to task persistence, however, Dr. Dinan found that
McRedmond would be highly variable.

He found that her ability

to maintain attention and complete tasks was limited to basic
and familiar tasks and that her pace would be slow.

He

diagnosed PTSD and a major depressive disorder that was
recurrent and mild.
Whitcher completed another “Psychological Capabilities”
form on July 9, 2012, and again noted McRedmond’s diagnoses of
PTSD and recurrent and moderate major depressive disorder.
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She

again found no limitations or only mild or moderate limitations
in McRedmond’s abilities to function but also stated that
McRedmond was not capable of working.
State agency physician, Dr. Louis Rosenthall, reviewed
McRedmond’s medical records on October 16, 2012, to evaluate her
physical abilities to function.

Dr. Rosenthall found that

McRedmond could perform a full range of light work without any
limitations.
Rexford Burnette, Ph.D, did a psychological evaluation of
McRedmond on October 22, 2012.

Dr. Burnette reviewed Dr.

Dinan’s report and examined McRedmond.

Based on his

examination, he found that McRedmond was tearful and her mood
was labile but that she was alert and attentive, able to
concentrate and remain on track, and had intact memory.

Based

on McRedmond’s reports, Dr. Burnette found that she had moderate
limitations in her ability to do daily activities, moderate loss
in the domain of social interactions, and would often have
functional loss in work related tasks.

He diagnosed dysthymic

disorder, generalized anxiety, and chronic PTSD.
State agency psychologist Michael Schneider, Psy.D.,
reviewed McRedmond’s medical records on November 6, 2012, to
evaluate her mental abilities.

Dr. Schneider found that

McRedmond had no limitations in understanding, memory,
concentration, and persistence; had moderate limitations in her
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ability to interact appropriately with the public and her
ability to accept instructions and criticisms; and was not
significantly limited in her ability to get along with coworkers and to maintain socially appropriate behavior.

More

specifically, Dr. Schneider found that McRedmond retained the
functional capacity to remember and carry out instructions,
including complex instructions, for extended periods and to
maintain adequate attention and complete a normal work day.

Dr.

Schneider limited her work function to an environment in which
she would be able to avoid the general public and her
supervisors would not be overly critical.
In 2013, McRedmond was treated by Dr. Steven Youngs for
pain in her left hip and leg.

Dr. Youngs found that McRedmond

was depressed but showed no acute or apparent distress due to
pain and that her gait was normal.
McRedmond exercise and lose weight.

Dr. Youngs recommended that
McRedmond saw Dr. Luchi

Quinones in August of 2013 for back pain.

After reviewing

McRedmond’s x-rays, Dr. Quinones advised McRedmond to exercise
and prescribed vitamin D, naproxen, and Elavil.
On January 6, 2014, Whitcher prepared a “Summary Note” in
which she repeated McRedmond’s reports about her prior work
experiences and her symptoms.

On the mental status examination

report, Whitcher stated that McRedmond was well groomed and that
she had normal speech, responsive affect, full orientation, good
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insight, and denied suicidal and homicidal thoughts, obsessions,
and compulsions.
anxious.

Whitcher also found that McRedmond was

Whitcher stated that McRedmond was not able to

maintain fulltime employment.
McRedmond saw Andrea Berry, D.O., in July and September of
2014.

In July, Dr. Berry noted McRedmond’s complaints of

anxiety but found that she was in no apparent distress although
she was tearful.

Dr. Berry found that McRedmond was fully

oriented and had normal functioning.

In September, McRedmond

complained of fatigue and muscle pain, but Dr. Berry found she
was in no apparent distress.
McRedmond also saw Claire Scigliano, Psy.D., for
counseling.

Dr. Scigliano prepared a document titled “Treating

Physician/Treatment Provider Opinion” on November 10, 2015.

Her

last treatment session with McRedmond was in July of 2015, but
Dr. Scigliano stated that her assessment was also based on a
telephone conversation on November 10.

Dr. Scigliano assessed

McRedmond’s ability to function in twenty-three functional
domains and found that McRedmond’s ability to function was
deficient and generally unsatisfactory.

Dr. Scigliano also

found that McRedmond’s stress increased with certain tasks and
that she would not be able to handle even part-time work.

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A hearing was held on November 12, 2015, before an ALJ.1
McRedmond was represented by a non-attorney representative.

A

vocational expert also testified at the hearing.
McRedmond testified at the hearing that her ability to work
was limited by her chronic pain, anxiety, and PTSD.

She

described a typical day that included driving her boyfriend
places, doing dishes and laundry, and taking the dog for a walk.
She said that on a bad day she would sleep or try to talk
herself into getting things done.

In response to the ALJ’s

questions, the vocational expert testified that McRedmond could
do her prior jobs as a cleaner and office clerk, and in response
to McRedmond’s representative’s questions the vocational expert
testified that McRedmond could do her prior work as a cleaner
unless she required supportive supervision or would be absent
one day each week.
The ALJ found that McRedmond had severe impairments due to
obesity, PTSD, depression, endometriosis, and irritable bowel
syndrome.

He found that those impairments and in combination

with other impairments did not meet or equal impairments listed
at 10 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ found

McRedmond first applied for disability insurance benefits
and supplemental security income in 2012. A hearing on
McRedmond’s applications was held on January 8, 2014, which
resulted in denial of her applications. In June of 2015, the
Appeals Council remanded the case for further evaluation.
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that McRedmond had the residual functional capacity to do light
work but limited her to work with only occasional contact with
the general public.

Based on that assessment, the ALJ found

that McRedmond was able to do her past work and that she was not
disabled.

The Appeals Council denied her request for review on

January 30, 2017, making the ALJ’s decision the final decision
of the Acting Commissioner.
Discussion
McRedmond moves to reverse the decision on the grounds that
the ALJ failed to properly consider the opinion of Dr. Dinan and
instead based his residual functional capacity assessment on his
own lay evaluation of the medical evidence.

The Acting

Commissioner moves to affirm, arguing that the ALJ properly
considered the opinion evidence and properly assessed her
residual functional capacity.
A.

Dr. Dinan’s Opinion
McRedmond contends that the ALJ erred in failing to address

the restriction in Dr. Dinan’s opinion that she was limited in
concentration and task completion.

Specifically, Dr. Dinan

found that McRedmond’s “abilities to maintain concentration and
complete tasks are limited to beginning basic, familiar tasks,
and proceeding at a slow pace” and that her ability to tolerate
stress in a work environment required “basic familiar job tasks
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completed at a slow pace with supportive supervision.”
McRedmond contends that the ALJ failed to include those
limitations or explain why he did not accept that part of Dr.
Dinan’s opinion.
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record.
C.F.R. § 404.1527(b).2

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“Medical opinions are statements from

acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.”

§ 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that support or detract
from the opinion.

§ 404.1527(c).

An ALJ may rely on the

opinion of a state agency consultant as medical opinion
evidence.

§ 404.1527(e).

Because the pertinent regulations governing disability
insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec’y of Health & Human Servs., 877
F.2d 123, 124 (1st Cir. 1989).
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The ALJ primarily relied on Dr. Schneider’s evaluation and
opinion in assessing McRedmond’s residual functional capacity.
Dr. Schneider reviewed Dr. Dinan’s opinions in making his own
assessment but did not acknowledge Dr. Dinan’s limitations to
familiar tasks and a slow pace because of impairment in
concentration.

Instead, Dr. Schneider found that McRedmond was

able to understand, remember, and carry out even complex
instructions for extended periods without special supervision.
Dr. Schneider also found, however, that McRedmond would need to
work in an environment where the supervisor was not overly
critical.
The ALJ adopted Dr. Schneider’s assessments except for the
requirement of a supervisor who was not overly critical.

To

address that limitation, the ALJ cited parts of Dr. Dinan’s
opinion to show that McRedmond would be able to handle
criticism.

The ALJ apparently overlooked Dr. Dinan’s opinion

that McRedmond would need supportive supervision.

The ALJ

further relied on the vocational expert’s testimony that a
requirement for a supervisor who was not overly critical was a
personality trait of the supervisor and not something that she
could consider for evaluating the ability to do a job.
The ALJ appears to have relied on results that would
support a lack of limitations, while overlooking or ignoring

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results that would raise concerns.3

Although an ALJ is

authorized “to piece together the relevant medical facts from
the findings and opinions of multiple physicians,” Evangelista
v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir.
1987), he cannot ignore medical opinion evidence in the record,
Nguyen, 172 F.3d at 35.

The ALJ’s failure to address the

limitations in concentration and pace, found by Dr. Dinan, and
his failure to adequately weigh the special supervision
requirements found by Dr. Dinan and Dr. Schneider undermine the
evidentiary bases for his decision, leaving it without the
support of substantial evidence.
B.

Residual Functional Capacity
McRedmond also faults the ALJ for relying on Dr.

Schneider’s opinion, provided in November of 2012, because she
continued to receive treatment that resulted in additional
medical records during the intervening years before the ALJ’s
decision in February of 2016.

She argues that the ALJ

impermissibly interpreted the raw medical data generated after
November of 2012 to decide that her functional capacity had not

McRedmond and the Acting Commissioner dispute the import of
Dr. Schneider’s review of Dr. Dinan’s opinion. McRedmond
contends that Dr. Schneider’s review is not relevant, while the
Acting Commissioner contends that the ALJ was entitled to rely
entirely on Dr. Schneider’s opinion. It is concerning in this
case that the ALJ and Dr. Schneider both appear to have missed
Dr. Dinan’s limitations based on concentration and pace.
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changed.

The Acting Commissioner contends that the ALJ properly

addressed the evidence that post-dated the 2012 opinions.
A state agency reviewing consultant’s opinion cannot
provide substantial evidence to support an ALJ’s decision if the
opinion is based on a “significantly incomplete record.”
Alcantara v. Astrue, 257 Fed. Appx. 333, 334 (1st Cir. 2007);
Giandomenico v. Acting Comm’r, Social Security Admin., 2017 WL
5484657, at *4 (D.N.H. Nov. 15, 2017).

A record is

significantly incomplete if it demonstrates a material change
for the worse in the claimant’s condition.
Appx. at 334.

Alcantara, 257 Fed.

An ALJ as a lay person is not qualified to

interpret raw medical data to assess its impact on functional
capacity unless the impact on the claimant’s ability to work
would be apparent to a lay person.

Gordils v. Sec’y of Health &

Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).
The ALJ gave little weight to the opinions of McRedmond’s
counselor, Jennifer Whitcher, and her psychologist, Dr. Claire
Scigliano, that were provided after the 2012 state agency
opinions and explained his reasons for doing so.

The ALJ

discussed medical evidence generated after 2012 and noted
comments that McRedmond had improved.

Because the case will be

remanded for further proceedings, the court need not decide
whether the 2012 opinions were out of date, based on the later
medical records.
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Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 7) is granted.

The Acting

Commissioner’s motion to affirm (document no. 12) is denied.
The case is remanded for further proceedings under sentence
four of § 405(g).

The clerk of court shall enter judgment

accordingly and close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 21, 2017
cc:

Terry L. Ollila, Esq.
Robert J. Rabuck, Esq.
D. Lance Tillinghast, Esq.

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