Scott v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 13 Motion to Affirm Decision of Commissioner. The decision of the Acting Commissioner is reversed, and the case is remanded. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Charles Sumner Scott, IV
v.

Civil No. 18-cv-26-JD
Opinion No. 2018 DNH 181

Nancy A. Berryhill, Acting
Commissioner, Social Security
Administration

O R D E R
Pursuant to 42 U.S.C. § 405(g), Charles Scott seeks
judicial review of the Acting Commissioner’s decision denying
his applications for social security benefits under Titles II
and XVI.

In support, Scott contends that the Administrative Law

Judge (“ALJ”) erroneously evaluated the medical opinion evidence
and erroneously evaluated Scott’s testimony about his symptoms
and limitations.

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).

Substantial evidence is “more than a

scintilla of evidence” but less than a preponderance.
Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

Purdy v.

The court must

affirm the ALJ’s findings, even if the record could support a
different conclusion, as long as “a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support [the ALJ’s] conclusion.”

Irlanda Ortiz v.

Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (internal quotation marks omitted); accord Purdy, 887 F.3d
at 13.
Background
The parties’ joint factual statement begins in December of
2012 when Scott injured his back at work.

The day after the

injury he saw Dr. Glen Crawford who reported Scott’s description
of his pain.

The factual statement includes examination notes

made by Dr. Henry Pallatroni in July and August of 2013 that
addressed Scott’s back pain.

Although the ALJ discusses

additional medical treatment with other providers, that
information is not included in the joint statement.
Scott had a mental consultative examination, done by Sandra
Vallery, Ph.D., in October of 2013, and Scott placed in the
range of no cognitive impairment.
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State agency psychologist

Laura Landerman, Ph.D., provided a function-by-function
evaluation of Scott’s abilities in November of 2013, finding
mild to moderate limitations.

Dr. Vallery did another mental

consultative examination in April of 2017 when she found more
limitations than found in 2013.
In November of 2013, Dr. Louis Rosenthall, a state agency
physician, reviewed Scott’s records and provided a function-byfunction evaluation of Scott’s abilities.

Dr. Rosenthall found

that Scott could occasionally lift and carry twenty pounds and
could frequently lift and carry ten pounds.

Although a cane was

necessary for walking, Scott could stand, walk, or sit for six
hours in a work day.

He could occasionally do postural

activities and had to avoid exposure to hazards.

Dr. Rosenthall

found no limitations in his manipulative, visual, or
communicative abilities.
Scott also had a physical examination in April of 2017 by
William Kirmes, D.O.

He found that Scott expressed an

inordinate amount of pain for the situation and did not give
full effort on examination.

Based on the examination results,

Dr. Kirmes indicated on a “Medical Source Statement of Ability
to Do Work-Related Activities (Physical)” form that Scott could
not lift up to ten pounds, could sit for two hours at a time,
three hours total; stand or walk for one hour at a time, two

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hours total in an eight-hour workday.

He could occasionally

reach and had no limitations on his ability to use his hands.
Dr. Kirmes left the section in the form blank that asked for
medical or clinical findings to support his evaluation.
A hearing was held before an ALJ on May 23, 2017.

Scott

was represented by an attorney and testified at the hearing.

A

vocational expert also testified.
The ALJ issued his decision on June 28, 2017.

The ALJ

found that Scott had severe impairments of degenerative disc
disease of the lumbar spine, depression, anxiety, and panic
disorder with agoraphobia.

Based on the record, the ALJ found

that Scott had the residual functional capacity to do light work
with added restrictions that he be allowed to alternate between
sitting and standing, he could only occasionally do postural
limitations, he would need to avoid hazards and extreme
temperatures, he could perform only simple, routine, and
repetitive tasks and would have only occasional interaction with
the public, coworkers, and supervisors.

The ALJ then found that

Scott could do certain jobs identified by the vocational expert,
and as a result, was not disabled.
his request for review.

4

The Appeals Council denied

Discussion
In support of his motion to reverse and remand, Scott
contends that the ALJ erroneously weighed the opinion evidence
and improperly evaluated his testimony about his symptoms and
limitations in light of SSR 16-3p.
moves to affirm.

The Acting Commissioner

Because the ALJ’s reliance on Dr. Rosenthall’s

assessment requires reversal, other issues need not be
addressed.
“Medical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.”

20 C.F.R. § 404.1527(a)(1).

Medical opinions are evaluated based upon the nature of the
medical source’s relationship with the claimant, the extent to
which the source provides evidence to support the opinion, the
extent the opinion is consistent with other evidence in the
record, the specialization of the medical source, and other
factors including the understanding the source has of the social
security system.

§ 404.1527(c).

An ALJ may rely on the opinions of state agency consultant
medical sources based on the same factors used to evaluate other
medical opinions.

Ledoux, 2018 WL 2932732, at *4.

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On the other

hand, an opinion of a reviewing consultant does not provide
substantial evidence to support an ALJ’s findings if it is based
on a “significantly incomplete record.”

Alcantara v. Astrue,

257 Fed. Appx. 333, 334 (1st Cir. 2007); Padilla v. Barnhart,
186 Fed. Appx. 19, 21 (1st Cir. 2006); Avery v. Acting Comm’r,
Social Security Admin.¸ 2018 WL 2376507, at *4 (D.N.H. May 24,
2018).

A record is not significantly incomplete as long as the

new or later evidence does not support greater limitations or is
arguably consistent with the earlier assessment by the
consultant.

Giandomenico v. Acting Comm’r, Social Security

Admin., 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017).

“The ALJ

bears the burden of determining and explaining whether missing
evidence is material to assessing the claimant’s limitations.”
Avery, 2018 WL 2376507, at *4.
In this case, the ALJ adopted the residual functional
capacity assessment by the state agency physician, Dr.
Rosenthall, except that the ALJ added limitations based on “the
record as a whole.”

The ALJ gave only “partial weight” to Dr.

Rosenthall’s assessment because “Dr. Rosenthall did not have
access to a full longitudinal view of the medical evidence of
record.”

The ALJ did not explain what evidence was generated

after Dr. Rosenthall’s review.

The ALJ, however, did determine

that the record as a whole, along with Scott’s “subjective

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allegations,” would support greater limitations than Dr.
Rosenthall found.1

The ALJ added functional limitations and

environmental restrictions without relying on any medical
opinion to support that assessment.2
Therefore, based on the ALJ’s explanation, the record was
significantly incomplete when Dr. Rosenthall did his review and
made his assessment in 2013.

As a result, the ALJ could not

rely on Dr. Rosenthall’s assessment, and substantial evidence is
lacking to support the ALJ’s residual functional capacity
assessment.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 8) is granted.
The Acting Commissioner’s motion to affirm (doc. no. 13) is
denied.

Although the ALJ also found that Dr. Rosenthall’s
assessment was “generally consistent with the record as a
whole,” that did not overcome the conclusion that the record
supported greater limitations than Dr. Rosenthall found.
1

An ALJ, as a lay person, is not qualified to interpret a
medical record in functional terms. Gordils v. Sec’y of Health
& Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). Although an
exception exists when the assessment may be based on commonsense judgments, the ALJ’s explanation does not appear to show
merely a common-sense judgment.
2

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The decision of the Acting Commissioner is reversed, and
the case is remanded pursuant to Sentence Four for further
administrative proceedings.
SO ORDERED

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 11, 2018
cc:

Hugh Dun Rappaport, Esq.
D. Lance Tillinghast, Esq.

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