Quinones v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER granting 8 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
Jose Antonio Quinones,
Claimant
Case No. 17-cv-359-SM
Opinion No. 2018 DNH 094

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,
Jose Quinones, moves to reverse the Acting Commissioner’s
decision denying his application for Disability Insurance
Benefits under Title II of the Social Security Act (the “Act”),
42 U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI of the Act, 42 U.S.C. §§ 1381-1383(c).

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 February of 2015, claimant filed applications for

Disability Insurance Benefits (“DIB”), and Supplemental Security

Income, alleging that he was disabled and had been unable to
work since February 1, 2014. 1

Those applications were denied on

July 9, 2015, and claimant requested a hearing before an
Administrative Law Judge (“ALJ”).

On April 11, 2016, claimant, 2 his attorney, Adriana Blume,
the claimant’s case manager, and an impartial vocational expert
appeared before an ALJ, who considered claimant’s application de
novo.

On August 18, 2016, the ALJ issued his written decision,

concluding that claimant was not disabled, as that term is
defined in the Act, through the date of his decision.

Claimant

then requested review by the Appeals Council.

The Appeals

Council denied claimant’s request for review.

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.

1

The claimant filed a prior application on September 17,
2013, which was initially denied on January 22, 2014. On
February 10, 2015, claimant withdrew his request for a hearing
on that application.
2

Quinones had the assistance of a Spanish-English language
interpreter, who participated in the hearing telephonically.
See Admin. Rec. at 271-272.
2

Claimant then filed a “Motion to Reverse Decision of the
Commissioner” (document no. 8).

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. 13), 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.”
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Consolidated
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).

This court’s review of the ALJ’s decision is, therefore,
both limited and deferential.

The court is not empowered to

consider claimant’s application de novo, nor may it undertake an
independent assessment of whether she is disabled under the Act.
Rather, the court’s inquiry is “limited to determining whether
the ALJ deployed the proper legal standards and found facts upon
the proper quantum of evidence.”
35 (1st Cir. 1999).

Nguyen v. Chater, 172 F.3d 31,

Provided the ALJ’s findings are properly

supported by substantial evidence, the court must sustain those
findings even when there may also be substantial evidence
supporting the contrary position.

Such is the nature of

judicial review of disability benefit determinations.

See,

e.g., Tsarelka v. Secretary of Health & Human Services, 842 F.2d

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529, 535 (1st Cir. 1988); Rodriguez v. Secretary of Health &
Human Services, 647 F.2d 218, 222 (1st Cir. 1981).

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 his impairment prevents him from performing his
former type of work.

See Gray v. Heckler, 760 F.2d 369, 371

(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982).

If the claimant demonstrates an inability to

perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
he can perform, in light of his age, education, and prior work
experience.

See Vazquez v. Secretary of Health & Human

5

Services, 683 F.2d 1, 2 (1st Cir. 1982).

See also 20 C.F.R. §§

404.1512(f) and 416.912(f).

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

his:
physical or mental impairment or impairments are of
such severity that he is not only unable to do his
previous work but cannot, considering his 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 he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he 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 his alleged onset of disability, February 1, 2014.
Rec. at 28.

He next concluded that claimant suffers from the

following severe impairments: “anxiety and depression.”
Rec. at 28.

Admin

Admin.

However, 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 of the regulations.

Id. at 29.

Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to “perform a full range of work at
all exertional levels but with the following nonexertional
limitations: he can perform one to three step instructions; he
can carry out, concentrate and persist and pace during the
typical two-hour periods of an eight-hour workday and forty hour
work week and his [sic.] is limited to occasional contact with
the general public and co-workers.”

Admin. Rec. at 32.

In

light of those restrictions, and based on the testimony of the

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vocational expert, the ALJ concluded that claimant was capable
of performing his past relevant work, as it did not require the
performance of work-related activities precluded by the
claimant’s RFC.

Id. at 41.

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 43.

Discussion
Claimant challenges the ALJ’s decision, arguing that the
ALJ failed to properly weigh the medical expert opinion
evidence, and to adequately support the RFC determination and
decision.

I.

Medical Opinion Evidence
Claimant takes the position that the ALJ failed to give

proper weight to the medical opinions of his treating providers
and the opinion of examining psychologist, Dr. Jessica Stern.
Had the ALJ properly weighted those opinions, claimant says, he
would have met the Mental Impairment listings at 12.04 for
affective disorders, or the ALJ would have imposed greater
functional limitations at step four that would preclude all
gainful work.

Along those lines, claimant argues that the ALJ

improperly gave controlling weight to the opinion of the non-

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examining state agency psychological consultant, Dr. Phillips,
whose opinion was based upon an incomplete record.

As a preliminary issue, the ALJ’s statement that claimant
“does not allege that [his] impairments are of listing level
severity” is plainly incorrect.

Admin. Rec. at 30.

repeatedly made that argument before the ALJ.

Claimant

First, prior to

claimant’s hearing, claimant submitted a memorandum, requesting
an “on the record” decision that claimant met the listings at
12.04, and stating the basis for that request.
at 367 – 379.

See Admin. Rec.

Then, at the hearing, claimant’s counsel again

argued that claimant met the listings at 12.04 for affective
disorder.

Admin. Rec. at 292.

Putting that aside, there are two main problems with the
ALJ’s treatment of the medical opinion evidence.

The first is

that the ALJ relied on the one medical opinion in the record —
the opinion of the non-examining state agency consultant — that
is generally inconsistent with the five opinions submitted by
various members of claimant’s treatment team at the Greater
Nashua Mental Health Center (“GNMHC”).

As the ALJ stated during

the hearing, the five opinions from GNMHC are all “fairly
consistent or fairly similar.”

Admin. Rec. at 291-293.

Without

exception, each relates that claimant could be expected to be
absent from work at least four days a month, and would have
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difficulty on a sustained basis accepting instruction,
responding appropriately to criticism, and adapting to changes
in a work setting. 3
620; 469 – 475.

See Admin. Rec. at 654-657, 621-624; 617-

Dr. Phillips, on the other hand, opined that

“claimant can tolerate the minimum social demands of simple-task
settings,” “can tolerate simple changes in routine,” and could
“persist at simple tasks over time under ordinary conditions.”
Admin. Rec. at 312.

The court need not decide whether the ALJ correctly weighed
the medical opinion evidence, however, because a different
problem presents itself: the ALJ placed “substantial weight” on
a non-treating physician opinion that was based on a partial
record, and incorrectly understood the date the physician’s
opinion was rendered.

Dr. Phillips’s opinion was complete on May 5, 2015, nearly
a year before the hearing on April 11, 2016.

The ALJ noted it,

but indicated that Dr. Phillips had “reviewed the record
existing on July 9, 2015.”

Admin. Rec. at 40 (emphasis added).

That misinterprets the record: those sections of the

3

Dr. Jessica Stern, the state agency psychologist who
examined claimant on January 17, 2014, similarly opined that
claimant would not be able to persist at simple tasks. Admin.
Rec. at 882-885.

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Consultative Examination signed by Dr. Phillips are dated May 5,
2015.

The ALJ then stated: “additional treatment notes do not

document any meaningful change or deterioration in the
claimant’s presentation and these opinions remain consistent
with the evidence of record in its entirety.”
40.

Admin. Rec. at

He further stated, “there is nothing in the additional

medical reports to suggest that further limitations are
necessary.”

Id. at 41.

Because the ALJ erroneously thought that Dr. Phillips’s
report was rendered in July of 2015, rather than in May of 2015,
it is unclear whether the ALJ properly considered the entirety
of the relevant medical records – records dating back to May,
2015, rather than July, 2015 – in making his factual findings.
It is clear from the record, however, that Dr. Phillips reviewed
a limited record before issuing his opinion, and that he
reviewed no medical records post-dating March of 2015.

See

Admin. Rec. at 308.

As this court has previously noted, “the fact that [Dr.
Phillips] did not review later medical records does not
necessarily preclude the ALJ from relying on his RFC
assessment.”

Ferland v. Astrue, No. 11-CV-123-SM, 2011 WL

5199989, at *4 (D.N.H. Oct. 31, 2011).

However, “[i]t can

indeed be reversible error for an administrative law judge to
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rely on an RFC opinion of a non-examining consultant when the
consultant has not examined the full medical record.”

Strout v.

Astrue, Civil No. 08–181–B–W, 2009 WL 214576, at *8 (D. Me. Jan.
28, 2009) (citing Rose v. Shalala, 34 F.3d 13, 18 (1st Cir.
1994)).

“[A]n ALJ may rely on such an opinion where the medical

evidence postdating the reviewer's assessment does not establish
any greater limitations, or where the medical reports of
claimant's treating providers are arguably consistent with, or
at least not ‘clearly inconsistent’ with, the reviewer's
assessment.”

Ferland, 2011 WL 5199989, at *4 (internal

citations omitted).

“The burden is on the ALJ, however, to make

that determination and he must make it adequately clear.”
Giandomenico v. U.S. Soc. Sec. Admin., Acting Comm'r, No. 16-CV506-PB, 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017) (citing
Alcantara v. Astrue, 257 Fed. Appx. 333, 334 (1st Cir. 2007)
(ALJ erred in simply stating that “the record underwent no
material change” without explaining his analysis); Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)) (additional
citations omitted).

Here, the ALJ’s finding that the claimant’s “additional
medical reports” do not “suggest that further limitations are
necessary” (admin rec. at 41) is unsupported by any analysis of
or citations to the medical record.

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And, that determination is

contradicted by the record evidence post-dating May, 2015, which
evidence suggests a deterioration in claimant’s mental status.

In response to claimant’s argument, the Acting Commissioner
points out that Dr. Phillips reviewed medical records in which
claimant self-reported auditory hallucinations and an elevated
suicide risk.
6.

See Def.’s Mem. in Support of Motion to Affirm at

Therefore, says the Acting Commissioner, Dr. Phillips’s

failure to review claimant’s later medical records concerning
those symptoms is of no moment, since Dr. Phillips took them
into account in rendering his opinion.

While the Acting Commissioner is correct that claimant did
continue to report auditory hallucinations and suicidal ideation
throughout 2015 and 2016, claimant’s medical records indicate
that those symptoms, particularly his suicidal ideation,
worsened.

For example, those provider treatment notes reviewed

by Dr. Phillips concerning claimant’s suicidal ideation
generally note that claimant did not “endorse intent” to commit
suicide (admin. rec. at 789); or had “thoughts of not wanting to
be around,” but no suicidal intent (admin. rec. at 607).
also Admin. Rec. at 610 (similar).

See

However, by November, 2015,

claimant’s medical records indicate that his suicidal ideation
was “stick[ing] in his mind for long periods.

About a couple

weeks ago, reportedly went as far as looking for a cable to hang
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himself.”

Admin. Rec. at 851.

In December, 2015, Dr. Lockward,

one of claimant’s treating physicians, took the precautionary
step of limiting claimant’s prescription to a two-week supply,
after claimant stated he wanted to “overdos[e] on all his
medications.”

Admin. Rec. at 855.

Claimant’s deterioration is further evidenced by claimant’s
physician treatment records in late 2015 and early 2016, which
indicate that claimant’s judgment was impaired, or increasingly
limited.

See, e.g., Admin. Rec. at 859 (January 11, 2016);

Admin. Rec. at 834-835 (September 17, 2015).

Claimant’s

treatment records post-May, 2015, further indicate that his
providers began to opine that he likely required inpatient
treatment.

See Admin. Rec. at 834-835; Admin. Rec. at 855.

Finally, following Dr. Phillips’s review of the record,
claimant’s providers, who had previously assessed his prognosis
as “fair” (see, e.g., admin. rec. at 469), changed their
prognosis to “guarded to poor” (see, e.g., admin. rec. at 617;
admin. rec. at 654; admin. rec. at 865).

Given all the above, the ALJ’s determination that Dr.
Phillips’s opinion was based on a sufficiently complete record
is not supported by substantial evidence.

As a result, Dr.

Phillips’s “opinion could not equate to substantial evidence and
the ALJ erred in adopting it in his RFC assessment.”
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Giandomenico, 2017 WL 5484657, at *6.

Accordingly, the court is

constrained to reverse the ALJ’s decision, and remand this case
to the SSA for further consideration.

Conclusion
The court having determined that the ALJ erred in his
treatment of Dr. Phillips’s opinion, the court need not address
claimant’s additional arguments.

For the foregoing reasons, as

well as those set forth in the claimant’s legal memorandum,
claimant’s motion to reverse the decision of the Commissioner
(document no. 8) is granted, and the Acting Commissioner’s
motion to affirm her decision (document no. 11) is denied.

The

Clerk of the Court shall enter judgment in accordance with this
order and close the case.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
May 14, 2018
cc:

Janine Gawryl, Esq.
Terry L. Ollila, AUSA

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