Inserra v. US Social Security Administration, Commissioner

Filing 23

///ORDER granting, to the extent claimant seeks a remand for further proceedings, 7 Motion to Reverse Decision of Commissioner; and denying 11 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Kristen Inserra,
Claimant
Case No. 17-cv-197-SM
Opinion No. 2018 DNH 036

v.
Nancy A. Berryhill, Acting Commissioner,
Social Security Administration,
Defendant

O R D E R

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Kristen Inserra, moves to reverse or vacate the Acting
Commissioner’s decision denying her applications for Disability
Insurance Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI.
U.S.C. §§ 423, 1381-1383c (collectively, the “Act”).

See 42

Claimant

asserts, among other things, that the ALJ failed to give
appropriate weight to the opinions of her treating physician.
The Acting Commissioner objects and moves for an order affirming
her decision.

For the reasons discussed below, claimant’s motion is
granted, and the Acting Commissioner’s motion is denied.

Factual Background
I.

Procedural History.
In September of 2013, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), alleging that she was disabled and had been
unable to work since July 18, 2013.

Claimant was 42 years old

at the time and had acquired sufficient quarters of coverage to
remain insured through December 31, 2017.

Claimant’s

applications were denied and she requested a hearing before an
Administrative Law Judge (“ALJ”).

In January of 2016, claimant, her attorney, and an
impartial vocational expert appeared before an ALJ, who
considered claimant’s applications de novo.

Seven weeks later,

the ALJ issued his written decision, concluding that claimant
was not disabled, as that term is defined in the Act, at any
time prior to the date of his decision.
review by the Appeals Council.

Claimant then requested

That request was denied.

Accordingly, the ALJ’s denial of claimant’s applications for
benefits became the final decision of the Acting Commissioner,
subject to judicial review.

Subsequently, claimant filed a

timely action in this court, asserting that the ALJ’s decision
is not supported by substantial evidence.

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Claimant then filed a “Motion to Reverse” the decision of
the Commissioner (document no. 7).

In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 11).

Those motions are

pending.

II.

Stipulated Facts.
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. 12), need not be
recounted in this opinion.

Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review
I.

“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.
1383(c)(3).

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).
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Substantial

evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”

Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Importantly, it

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.

Consolo v.

Federal Maritime Comm’n., 383 U.S. 607, 620 (1966).

See also

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

II.

The Parties’ Respective Burdens.
An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or 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. § 423(d)(1)(A).

The

See also 42 U.S.C. § 1382c(a)(3).

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).

To satisfy that

burden, the claimant must prove, by a preponderance of the
evidence, that her impairment prevents her from performing her
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former type of work.

See Manso-Pizarro v. Secretary of Health &

Human Services, 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. 1982).

See

also 20 C.F.R. §§ 404.1512, 404.1560, 416.912, and 416.960.
Ultimately, a claimant is disabled only if her:

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
work.

42 U.S.C. § 423(d)(2)(A).

See also 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
her decision.

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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.
§§ 404.1520 and 416.920.
U.S. 20, 24 (2003).

See generally Barnhart v. Thomas, 540

Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: July 18, 2013.
Rec. at 16.

Admin.

Next, he concluded that claimant suffers from the

following severe impairments: “diabetes mellitus, diabetic
neuropathy, and right shoulder impairment.”

Id. at 17.

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 19.

Next, the ALJ concluded that claimant retained the residual
functional capacity to perform the exertional demands of “light”
work, subject to the following limitations:

claimant can only stand and/or walk for a total of
four hours in an eight-hour day and sit for about six
hours in an eight-hour day. The claimant has
unlimited use of her hands and feet to push and pull.
The claimant can never climb ladders, ropes, or
scaffolds, but can occasionally climb ramps and
stairs, and balance, kneel, crouch, stoop, and crawl.
The claimant can occasionally reach overhead with her
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right upper extremity and should avoid concentrated
exposure to extreme heat, cold, and vibration and all
exposure to unprotected heights.

Admin. Rec. at 20.

In light of those restrictions, the ALJ

concluded that claimant was capable of performing her past
relevant work as an account clerk (which the vocational expert
testified was performed at both the light and sedentary work
level).

Id. at 26.

See also Id. at 48-49 (vocational expert’s

testimony about claimant’s work history).

Despite having concluded, at step four of the sequential
analysis, that claimant is not disabled, the ALJ continued to
step five of that analysis and made additional (alternate)
findings.

Specifically, he considered whether there were any

other jobs in the national economy that claimant might perform,
despite her impairments.

Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding
claimant’s exertional and non-exertional limitations, “there are
other jobs that exist in significant numbers in the national
economy that the claimant also can perform.”

Id. at 26.

Consequently, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act, through the date
of his decision.

Id. at 27.

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Discussion
I.

Claimant’s Assertions of Error.
Claimant challenges the ALJ’s decision on four grounds,

asserting that he erred by: (1) erroneously determining her
Residual Functional Capacity (“RFC”); (2) failing to give
appropriate weight to the opinions of her treating physician,
Dr. Kaploe, while giving inordinate weight to those of state
agency consultant, Dr. Fairley; (3) improperly concluding, at
step four, that claimant could perform her past relevant work;
and (4) relying upon inaccurate and/or unreliable vocational
expert testimony that was based upon a flawed residual
functional capacity assessment.

Because the court agrees that the ALJ erred in failing to
give appropriate weight to the opinions of claimant’s treating
source (or by failing to adequately justify his decision to give
those opinions “little weight”), the court need only address
that issue.

II.

Medical Source Opinions.
Claimant challenges the weight the ALJ afforded to the

opinions of her primary care physician, Dr. Michael Kaploe, a
physician at Dartmouth-Hitchcock Medical Center, in Lebanon, New
Hampshire.

Specifically, claimant asserts that the ALJ
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improperly discounted Dr. Kaploe’s opinions based upon
unsupported speculation that he was a biased and unreliable
source.

She also says the ALJ failed to properly consider

substantial evidence that was introduced into the record after
Dr. Hugh Fairley (the non-examining state agency physician)
conducted his review.

Turning first to claimant’s argument that the ALJ
improperly speculated about potential (though entirely
undocumented) biases on the part of Dr. Kaploe, her point is
well taken.

The ALJ seems to have taken to including in his

written decisions boilerplate language aimed at routinely
undermining the credibility of primary care physicians.

Here,

that language appears as follows:

With regard to the claimant’s treating physician
opinions, the undersigned finds that such are not
entitled to controlling weight. The possibility
always exists that a doctor may express an opinion in
the effort to assist a patient with whom he or she
sympathizes for one reason or another. Patients can
be quite insistent and demanding in seeking supportive
notes or reports from their physicians, who might
provide such a note in order to satisfy their
patients’ requests and avoid unnecessary
doctor/patient tension. While it is difficult to
confirm the presence of such motives, they are more
likely in situations where the opinion in question
departs substantially from the rest of the evidence of
record, as in the current case.

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Admin. Rec. at 24.

This court has previously addressed that

(and similar) language.
unhelpful.

Such language is, of course, decidedly

Absent evidence that a treating source’s opinion is

an “advocacy opinion,” language of that sort does nothing to
support the ALJ’s decision and, instead, merely distracts from
the actual issues (indeed, such language might be taken as
evincing a general predisposition to find “advocacy” in all
treating physicians’ opinions simply because they are from
treating physicians).

See generally Meldrem v. Colvin, No. 16-

CV-156-JL, 2017 WL 2257337, at *3, n.9 (D.N.H. May 23, 2017)
(noting that the court found “troubling” the ALJ’s “unsupported
speculation as to [the] physician’s motives”); Sunshine v.
Berryhill, No. 16-CV-446-LM, 2018 WL 582576, at *5, n.6 (D.N.H.
Jan 29, 2018) (finding similar comments about a physician’s
motives “unhelpful”); Cross v. Colvin, No. 15-CV-331-PB, 2016 WL
8732381, at *7 (D.N.H. Apr. 4, 2016) (noting that the “ALJ’s
expansive view of ‘advocacy opinions’ would seem to cover any
opinion from a claimant’s treating physician that is favorable
to the claimant.

That is bad enough, but when coupled with the

concept of deference to opinions from medical sources who
understand the SSA’s regulations, see 20 C.F.R. §
404.1527(c)(6), the ALJ’s approach turns the SSA’s guidance on
evaluating medical opinions on its head.”).

Here, there is no

evidence that Dr. Kaploe somehow modified or exaggerated his
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professional medical opinions in order to assist claimant in
obtaining SSI and/or DIB benefits to which she was not otherwise
entitled.

Indeed, his diagnoses and opinions are entirely

consistent throughout the record.

For example, in January of 2014, Dr. Kaploe completed a
Mental Residual Functional Capacity Questionnaire, in which he
opined that claimant was “unable to meet competitive standards”
in the following categories: maintain regular attendance and be
punctual; complete a normal workday and workweek without
interruptions from psychologically based symptoms; and deal with
normal stress.

Admin. Rec. at 741.

The ALJ gave those opinions

“little weight,” reasoning that Dr. Kaploe is not a specialist
in the field and noting that he reported (on that same form)
that claimant has “no evidence of mental impairment at follow-up
examinations for diabetic management.”
that is true.

Id. at 24-25.

All of

But, even a cursory review of Dr. Kaploe’s

opinion reveals that he based those opinions, not exclusively on
claimant’s psychological impairments, but rather on both the
physical and psychological impairments she suffered as a
consequence of her severe diabetes and diabetic neuropathy.
See, e.g., Id. at 742 (“Patient currently dealing with anxiety
surrounding poorly controlled diabetes mellitus type I and
financial concerns regarding her care and that of child and
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grandchild.

Patient having difficulty with complications

related to diabetes and difficulty maintaining regular
employment as a result of illness.”).

To be sure, Dr. Kaploe’s

opinions are of the sort that are more typically found in a
“Medical Source Statement of Ability to Do Work-Related
Activities (Physical),” but there is no indication he was asked
to complete such a form.

The important point is this: that Dr.

Kaploe expressed his opinions about claimant’s ability to
perform work-related activities on arguably the wrong form is
not a basis to discount those opinions.

Finally, says claimant, even if the ALJ’s speculative
musings about Dr. Kaploe’s potential biases and his arguable
misreading of the import of Dr. Kaploe’s opinions, are not,
standing alone, enough to warrant remand, the ALJ’s improper
handling of additional treatment notes (added to the record
after Dr. Hugh Fairley, the non-examining state agency
physician, issued his opinion) does warrant remand.

Dr. Fairley

reviewed claimant’s medical records in July of 2014.

He opined

that claimant could: lift and/or carry 20 pounds occasionally
and 10 pounds frequently; push and/or pull as much as she could
lift and/or carry; stand and/or walk for a total of four hours
in an eight-hour workday; and sit for about six hours in an
eight-hour workday.

Admin. Rec. at 65-66.
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The ALJ afforded Dr.

Fairley’s opinion “great weight.”

Id. at 25.

But, says

claimant, substantial medical evidence that both undermined Dr.
Fairley’s opinions and supported her claimed disability was
introduced after Dr. Fairley rendered his opinion.

Claimant’s

memorandum (document no. 7) at 8.

Although the ALJ acknowledged that new evidence, he
dismissed it in a single sentence, concluding that none of it
“document[ed] any meaningful change or deterioration in the
claimant’s presentation.”

Admin. Rec. at 25.

that conclusion is contradicted by the record.

Claimant says
In particular,

claimant points to Dr. Kaploe’s letter of December, 2015 issued more than a year after Dr. Fairley conducted his review in which Dr. Kaploe stated:

Ms. Inserra’s diabetic neuropathy is extremely
painful, particularly at her lower extremities. Ms.
Inserra has considerable difficulty standing or
walking for any considerable period of time. She is
currently being managed for her diabetic neuropathy by
pain specialists and is requiring significant doses of
narcotic medication to be able to perform her
activities of daily living. Ms. Inserra has been
tried extensively on conservative therapy for her
diabetic neuropathy and has not met with much success
in this regard. Ms. Inserra’s diabetic neuropathy
given the extent of her diabetes, is not likely to
improve and thus must he medically managed with pain
control medications provided by her pain specialist.
* * *

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Ms. Inserra’s diabetes mellitus type I, along with her
significant diabetic neuropathy as well as comorbid
conditions of delayed gastric emptying (gastroparesis)
make it extremely difficult for Ms. Inserra to perform
work on a daily basis. Ms. Inserra has difficulty
with her activities of daily living due to her
diabetic neuropathy and is requiring narcotic
medications for management of the pain associated with
her diabetic neuropathy.

Admin. Rec. at 1104.

At a minimum, those opinions seriously

call into question whether, at that point, claimant retained the
RFC to stand and walk for up to four hours each day of a
workweek (or whether she would even be able to maintain regular
attendance and complete a normal workday).

Moreover, Dr. Kaploe’s opinions are supported by the
medical evidence submitted after Dr. Fairley’s review.

For

example, in September of 2014, physician’s assistant Kathleen
Keys at PainCare Centers, Merrimack, New Hampshire, noted that
claimant’s leg pain had been increasing over the past month,
often to the point of making it impossible for her to walk.
Admin. Rec. at 713.

Ms. Keys also noted that claimant’s pain is

so severe that she is on the “max limits for medication,” and,
therefore, at risk for opioid dependence (claimant was taking
200 mg of MS Contin three times each day, along with 15 mg of
Roxicodone (another opioid painkiller) up to three times each
day).

Id. at 700.

Indeed, Ms. Keys opined that, “I consider

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this patient to be at moderate risk of morbidity given the
severity of pain.”

Id.

Also supporting Dr. Kaploe’s opinion is the fact that in
August of 2014, it was noted the claimant’s gait had become
unsteady, and in February of 2015, she fell down some stairs
because she lost her balance.

Admin. Rec. at 688.

In April,

2015, it was recommended that claimant establish care with a
counselor based on worsening anxiety related to her diabetic
neuropathy.

Id. at 768.

In August of that year, claimant had

eye surgery to correct a detached retina due to a vitreous
hemorrhage related to proliferative diabetic retinopathy.
at 630, 633.

Id.

And, in September of 2015, Dr. Kaploe reported

that “monofilament testing to feet bilateral with deficit noted
on testing to dorsal aspects of both feet,” id. at 759, and the
following month claimant reported that she has no sense of
hot/cold below the knee, id. at 643.1

1

Monofilament testing is a means by which to identify
diabetes patients who are at risk for foot ulceration as a
result of neuropathy. The test measures a patient’s response to
pressure. According to one source, “Many prospective studies
have confirmed that loss of pressure sensation using the 10-g
monofilament is highly predictive of subsequent ulceration.”
Comprehensive Foot Examination and Risk Assessment, A report of
the Task Force of the Foot Care Interest Group of the American
Diabetes Association, with endorsement by the American
Association of Clinical Endocrinologists (available at
http://care.diabetesjournals.org/content/31/8/1679).
15 

In light of the foregoing, and for the reasons set
forth in claimant’s memoranda, the court is constrained to
conclude that the ALJ’s finding that the additional
treatment notes “do not document any meaningful change or
deterioration in the claimant’s presentation” is not
supported by substantial evidence.

As claimant points out,

those additional treatment notes and records consisted of
nearly 500 pages of medical reports - a substantial portion
of which were entirely consistent with Dr. Kaploe’s
opinions.

All of that, in turn, undermines the ALJ’s

decision to give the opinion of Dr. Kaploe - claimant’s
primary treating source - less than controlling weight.
See 20 C.F.R. § 404.1527(c)(2).

See also Social Security

Ruling, Policy Interpretation Ruling Titles II and XVI:
Giving Controlling Weight to Treating Source Medical
Opinions, SSR 96-2p, 1996 WL 374188 (July 2, 1996).

Conclusion
For the foregoing reasons, claimant’s motion to reverse the
decision of the Acting Commissioner (document no. 7) is granted
to the extent claimant seeks a remand for further proceedings.
The Acting Commissioner’s motion to affirm her decision
(document no. 11) is denied.

16 

Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated February 25, 2016, 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.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
February 21, 2018
cc:

Karen B. Fitzmaurice, Esq.
Penelope E. Gronbeck, Esq.
Terry L. Ollila, AUSA

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