Swain v. US Social Security Administration, Acting Commissioner

Filing 9

///ORDER granting 6 Motion to Reverse Decision of Commissioner; denying 7 Motion to Affirm Decision of Commissioner. The Acting Commissioner's motion for an order affirming her decision, document no. 7, is denied, and Swain's motion to reverse that decision, document no. 6, is granted to the extent that this matter is remanded to the Acting Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this order. The clerk of the court shall enter judgment in favor of Swain and close the case. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Ryan Joseph Swain
v.

Case No. 18-cv-145-PB
Opinion No. 2018 DNH 209

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration

O R D E R
Ryan Swain moves to reverse the decision of the Acting
Commissioner of the Social Security Administration (“SSA”) to deny
his applications for Social Security disability insurance
benefits, or DIB, under Title II of the Social Security Act, 42
U.S.C. § 423, and for supplemental security income, or SSI, under
Title XVI, 42 U.S.C. § 1382.

The Acting Commissioner, in turn,

moves for an order affirming her decision.

For the reasons that

follow, this matter is remanded to the Acting Commissioner for
further proceedings.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive .
. . .

1

42 U.S.C. § 405(g) (setting out standard of review for decisions
on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying §
405(g) to SSI decisions).

However, I “must uphold a denial of

social security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in evaluating
a particular claim.’”

Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15,

16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490
U.S. 877, 885 (1989)).
II. Background
The parties have submitted a Joint Statement of Material
Facts.

That statement, document no. 8, is part of the court’s

record and will be summarized here, not repeated in full.
Swain graduated from Boston University in 2011.

He remained

in Boston until he moved in with his parents in October of 2012.
In January of 2017, Swain was working: (1) four hours a week as a
math tutor; (2) five hours a week as a classroom paraprofessional
at the school where his mother worked as a nurse; and (3) 10 hours
a week as a recess monitor, also at his mother’s school.

At the

hearing he received after the SSA denied his applications, Swain
testified that he was late for his recess-monitor job two or three
times a week, but that the school accommodated his inability to
get to work on time.
In November of 2011, Swain saw his primary-care provider, Dr.
Joseph Nosiff, complaining of depression.

Dr. Nosiff gave Swain a

diagnosis of “depressive disorder not elsewhere classified,”

2

Administrative Transcript (hereinafter “Tr.”) 362, and later
prescribed him anti-depressants.

In addition to receiving

medication for his mental impairments from both Dr. Nosiff and a
psychiatrist, Swain has also received counseling and therapy from
psychologists and psychiatrists.
In May of 2013, Swain was picked up by the police, who found
him wandering the streets in the middle of the night.

They

transported him to a hospital emergency room where he was
diagnosed with recurrent severe major depressive disorder, without
psychotic features.
In June of 2013, Dr. Bruce Altman, a psychologist, referred
Swain to Dr. Karen Pearson for psychological testing. 1

In the

summary of her Psychological Testing Report, Dr. Pearson stated:
[W]hat is seen is supportive of a Major Depressive
Episode without psychotic features in a young man with
Generalized Anxiety Disorder. There is a situational
piece to Ryan’s current dysfunction and thus an
Adjustment Disorder with Mixed Anxiety and Depression
may layer on top of that which is more biologically
based. Finally . . . it would appear that Ryan has
prominent dependent, schizotypal and obsessive
compulsive personality features.
Tr. 316.

In the decision from which Swain appeals, the Administrative
Law Judge referred to this as a “consultative examination,” Tr.
31, but because it pre-dated Swain’s applications for benefits, it
was probably not a consultative examination within the scope of
the applicable regulations, which define “[a] consultative
examination [as] a physical or mental examination or test
purchased for [a claimant] at [the SSA’s] request,” 20 C.F.R. §§
404.1519 & 416.919.
1

3

In August of 2013, Swain filed applications for DIB and SSI,
claiming that he had been disabled since July of 2011 as a result
of depression, anxiety, attention-deficit disorder, and obsessivecompulsive disorder.
In December of 2015, Dr. Edward Martin, a non-examining
state-agency psychological consultant, reviewed Swain’s medical
records, including a November 2015 Mental Impairment Questionnaire
completed by Dr. Christianna Skoczek, a treating psychologist.
Based upon his review of those records, Dr. Martin performed a
psychiatric review technique (“PRT”) assessment. 2

In performing

the PRT, Dr. Martin considered two impairments, affective
disorders and anxiety disorders.

He determined that Swain had:

(1) mild restrictions in his activities of daily living; (2) mild
difficulties in maintaining social functioning; (3) mild
difficulties in maintaining concentration, persistence or pace;
and (4) no repeated episodes of decompensation, each of extended
duration.

Based upon those findings, Dr. Martin determined that

neither of Swain’s two mental impairments was severe enough to
qualify as a “listed” impairment under the applicable SSA
regulations, and he also concluded that Swain’s impairments did
not even meet the lesser standard under which an impairment

2

The SSA uses the PRT to evaluate the severity of mental
impairments. See 20 C.F.R. §§ 404.1520a & 416.920a.

4

qualifies as severe. 3

See Tr. 89, 99.

Finally, Dr. Martin did not

assess Swain’s mental residual functional capacity (“RFC”), 4
presumably because he had found that Swain had no severe mental
impairments.
In December of 2015, the SSA denied Swain’s claims.

He

requested a hearing before an Administrative Law Judge (“ALJ”),
and one was scheduled for January of 2017.
In December of 2016, Dr. Skoczek, who had treated
Swain twice a week since January of 2015, completed a form
captioned “Mental Impairment Questionnaire (RFC & Listings).”

She

indicated diagnoses of major depressive disorder and anxiety.
With respect to the criteria the SSA uses to determine
whether those impairments are severe enough to qualify as listed
impairments, Dr. Skoczek found that Swain had: (1) marked
restrictions in his activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) frequent
deficiencies in maintaining concentration, persistence or pace;

3

The SSA regulations define a “severe” impairment as “any
impairment or combination of impairments which significantly
limits [a person’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c) & 416.920(c).
4

“An applicant’s residual functional capacity ‘is the most
[he or she] can still do despite [his or her] limitations.’” Purdy
v. Berryhill, 887 F.3d 7, 10 n.2 (1st Cir. 2018) (quoting 20
C.F.R. § 416.945(a)(1), a regulation governing claims for SSI that
is worded identically to 20 C.F.R. § 404.1545(a)(1), which governs
claims for DIB) (brackets in the original).

5

and (4) continual episodes of deterioration or decompensation in
work or work-like settings.
With respect to Swain’s mental RFC, Dr. Skoczek opined that
he had: (1) an unlimited or very good capacity for one of 16
mental abilities and aptitudes necessary to do unskilled work; (2)
a good capacity for eight of them; (3) a fair capacity for four of
them; and (4) a variable capacity for the remaining two.

With

respect to the five mental abilities and aptitudes necessary to
perform particular types of jobs, Dr. Skoczek opined that Swain
had a fair to good capacity for each of them.

Finally, Dr.

Skoczek opined that Swain would be absent from work more than
three times a month because of his mental impairments or treatment
for them.
In January of 2017, Dr. Richard Naimark, a psychiatrist who
had treated Swain monthly since March of 2013, completed a Mental
Residual Functional Capacity Assessment on Swain.

With respect to

understanding and memory, Dr. Naimark opined that Swain had
moderate limitations in one of three listed abilities and marked
limitations in the other two. 5

With respect to sustained

concentration and persistence, Dr. Naimark opined that Swain had
moderate limitations in one of eight listed abilities, marked
limitations in four abilities, and extreme limitations in the

5

The form Dr. Naimark completed defines a “marked” limitation
as one in which “[t]he ability to function . . . is seriously
limited.” Tr. 499.

6

remaining three. 6

With respect to social interaction, Dr. Naimark

opined that Swain had mild limitations in one of five listed
abilities, marked limitations in three abilities, and extreme
limitations in the remaining ability.

With respect to adaptation,

Dr. Naimark opined that Swain had marked limitations in one of
five listed abilities and extreme limitations in the other four.
Finally, he opined that Swain’s limitations would interfere with
his ability to work on a regular and sustained basis at least 20
percent of the time, and that he would miss “many” days of work
each month because of his mental impairments or treatment for
them.
Just before his hearing, Swain submitted several pieces of
evidence to the ALJ, only some of which he accepted, but because
the ALJ’s decision on that matter is not a subject of claimant’s
appeal, there is no need to describe that evidence.
At Swain’s hearing, the ALJ took testimony from a vocational
expert (“VE”), to whom the ALJ posed three hypothetical questions.
In the first one, the ALJ asked the VE to consider
an individual of the same age, education, [and] work
experience as the Claimant [and who] has no exertional
limitations but is limited to simple routine work making
simple work-related decisions; occasional interaction
with the supervisors, coworkers, and the general public;
and time off task can be accommodated by normal breaks
and lunch periods.

6

The form Dr. Naimark completed defines an “extreme”
limitation as one in which “[t]he ability to function . . . is
precluded.” Tr. 499.

7

Tr. 77.

The VE testified that the person the ALJ described could

not perform Swain’s past work but could perform the jobs of
cleaner-housekeeper, dishwasher, and trash collector.

In his

second hypothetical question, the ALJ posited a person with the
same limitations as the person in the first question, but who
“would be off task 5 percent of the time in an eight-hour work
day.”

Tr. 79.

The VE testified that the additional limitation

would have no effect on a person’s ability to do the three jobs he
had previously identified.

In his third hypothetical, the ALJ

posited a person with the same limitations as the person in the
second question, but who could “be expected to be absent from work
three or more days a month.”

Id.

The VE testified that there are

no jobs that could be performed by a person who would be absent
from work that frequently.

Finally, in response to a question

from Swain’s counsel, the VE testified that a person who was 10 to
15 minutes late for work, four or more times a month, would be
precluded from working.
After the hearing, the ALJ issued a decision in which he
found that Swain: (1) had two severe impairments, “affective
disorder and anxiety disorder,” Tr. 27; but (2) did “not have an
impairment or combination of impairments that [met] or medically
equal[ed] the severity of one of the listed impairments” in the
Social Security regulations, id.

The ALJ gave Swain the following

RFC:

8

[T]he claimant has the residual functional capacity to
perform a full range of work at all exertional levels
but with the following nonexertional limitations: the
individual is limited to simple, routine work, making
simple work-related decisions. The individual can
occasionally interact with supervisors, co-workers, and
the general public. Time off task can be accommodated
by normal breaks and lunch periods.
Tr. 29-30.

In his discussion of Swain’s RFC, the ALJ said that he

was not persuaded by Dr. Skoczek’s opinion and found that Dr.
Naimark’s opinion had little probative value.

He concluded his

discussion of the opinion evidence this way:
Additional medical evidence received in the course of
developing the claimant’s case for review at the
hearing, as well as evidence in the form of credible
testimony at the hearing, consistent with medical
evidence in the record justifies a conclusion that the
claimant’s impairments are more limiting that was
concluded by the state examiner, Dr. Martin Ph.D.
Overall, the evidence as described above, supports the
finding that the claimant is more limited than Dr.
Martin determined but not as limited as alleged by other
medical sources.
Tr. 33 (citations omitted).
Based upon the RFC the ALJ assigned Swain and the testimony
of the VE, the ALJ determined that Swain was capable of performing
the jobs of cleaner-housekeeper, dishwasher, and trash collector
and, as a consequence, was not disabled.

Swain appealed his

unfavorable decision to the SSA’s Appeals Council (“AC”), which
declined review.

The AC also declined to consider several pieces

of new evidence that Swain had attempted to submit, but because
the AC’s decision on that matter is not a subject of claimant’s
appeal, there is no need to describe that evidence.

9

III. Discussion
A. The Legal Framework
To be eligible for DIB, a person must: (1) be insured for such
benefits; (2) not have reached retirement age; (3) have filed an
application; and (4) be under a disability.
423(a)(1)(A)-(D).

42 U.S.C. §

To be eligible for SSI, a person must be aged,

blind, or disabled, and must meet certain requirements pertaining
to income and assets.

42 U.S.C. § 1382(a).

The only question in

this case is whether the ALJ correctly determined that Swain was
not under a disability from July 1, 2011, through March 15, 2017,
which is the date of the ALJ’s decision.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI, an ALJ is required
to employ a five-step sequential evaluation process.

See 20

C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe impairment
or combination of impairments, the application is
denied; 3) if the impairment meets the conditions for
one of the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if the
[claimant’s] “residual functional capacity” is such that
he or she can still perform past relevant work, then the
application is denied; 5) if the [claimant], given his
or her residual functional capacity, education, work
experience, and age, is unable to do any other work, the
application is granted.

10

Purdy v. Berryhill, 887 F.3d 7, 10 (1st Cir. 2018) (quoting Seavey
v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); citing 20 C.F.R. §
416.920).
At the first four steps in the sequential evaluation process,
the claimant bears both the burden of production and the burden of
proof.

See Purdy, 887 F.3d at 9 (citing Freeman v. Barnhart, 274

F.3d 606, 608 (1st Cir. 2001)); see also Bowen v. Yuckert, 482
U.S. 137, 146 (1987).

He must prove he is disabled by a

preponderance of the evidence.

See Mandziej v. Chater, 944 F.

Supp. 121, 129 (D.N.H. 1996) (citing Paone v. Schweiker, 530 F.
Supp. 808, 810-11 (D. Mass. 1982)). 7

Finally,

[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability as
supported by the testimony of the claimant or other
witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690 F.2d
5, 6 (1st Cir. 1982)).
B.

Swain’s Claims

Swain claims that: (1) the ALJ and/or the AC erred at step 3
of the sequential evaluation process by failing to find that his

7

At step 5, the burden of proof shifts to the Acting
Commissioner, see Seavey, 276 F.3d at 5 (citing Arocho v. Sec’y of
HHS, 670 F.2d 374, 375 (1st Cir. 1982)), but the Acting
Commissioner’s step 5 determination is not at issue here, so there
is no need to describe the mechanics of step 5.

11

depression met the conditions for the impairment described in
Listing 12.04 in the Social Security regulations; 8 and (2) the ALJ
erred in assessing his RFC.

Swain’s second claim warrants a

remand.
“With a few exceptions . . ., an ALJ, as a lay person, is not
qualified to interpret raw data in a medical record.”

Manso-

Pizarro, 76 F.3d at 17 (citing Perez v. Sec’y of HHS, 958 F.2d
445, 446 (1st Cir. 1991); Gordils v. Sec’y of HHS, 921 F.2d 327,
329 (1st Cir. 1990)).

Thus, when a claimant’s RFC is at issue,

and the ALJ must measure the claimant’s capacities, “an expert’s
RFC evaluation is ordinarily essential unless the extent of
functional loss, and its effect on job performance, would be
apparent even to a lay person.”

Manso-Pizarro, 76 F.3d at 17

(quoting Santiago v. Sec’y of HHS, 944 F.2d 1, 7 (1st Cir. 1991)).
An expert’s RFC evaluation is typically presented in the form of a
medical opinion, and when considering an application for benefits,
the SSA is obligated to “evaluate every medical opinion [it]
receive[s],” 20 C.F.R. §§ 404.1527(c) & 416.927(c).
For applications such as Swain’s, which was filed before
March 27, 2017, medical opinions are evaluated according to the
factors described in 20 C.F.R. §§ 404.1527(c)(1)-(6) &

8

After Swain’s hearing, but before the ALJ issued his
decision, Listing 12.04 was changed from “affective disorders” to
“depression, bipolar, and related disorders,” and the conditions
for establishing a listing-level impairment under that listing
changed as well.

12

416.927(c)(1)-(6). 9

Moreover, because Drs. Skoczek and Naimark are

both treating sources, their opinions are “entitled to controlling
weight if they are ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and [are] not
inconsistent with the other substantial evidence in [Swain’s] case
record.”

McCormick v. Berryhill, No. 16-cv-321-LM, 2017 WL

4220449, at *5 (D.N.H. Sept. 22, 2017) (quoting 20 C.F.R. §§
404.1527(c)(2) & 416.927(c)(2)).

But even when an ALJ does not

give controlling weight to the opinion of a treating source, he
must give good reasons for the amount of weight he does give it.
See 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).
Here, Swain’s RFC is at issue; he claims that the ALJ erred
in assessing his RFC by “fail[ing] to take into account the
opinion evidence provided by [his] treating psychiatrist [Dr.
Naimark] and [his treating] psychologist [Dr. Skoczek],” Cl.’s
Mem. of Law (doc. no. 6-1) 3.

That opinion evidence, in turn,

appears in several documents, including two the ALJ considered,
Dr. Skoczek’s December 2016 Mental Impairment Questionnaire and
Dr. Naimark’s January 2017 Mental Residual Functional Capacity
Assessment.

While the ALJ devoted a full paragraph of his

decision to each of those two documents, he did not adequately
address the RFC opinions in Dr. Skoczek’s questionnaire.

9

For applications filed after March 27, 2017, different
regulations apply, i.e., 20 C.F.R. §§ 404.1520c & 416.920c.

13

This is what the ALJ had to say about the opinions in Dr.
Skoczek’s questionnaire:
Dr. Skoczek surmised the claimant has marked
restrictions in activities of daily living, maintaining
social functioning, and concentration, persistence and
pace. Dr. Skoczek suggested the claimant[] experienced
“continual” episodes of decompensation, which waxed and
waned. I am not persuaded by this assessment, as it is
not supported by the overall record of evidence. As
discussed [in] detail throughout this decision, the
claimant’s mental status examinations showed no more
than moderate findings (See Ex. 5F). The claimant
simultaneously maintained multiple part-time jobs.
Finally, by its very definition, there is no evidence
that the claimant experienced a single episode of
decompensation, never mind “continual” episodes.
Tr. 32.

The problem with the ALJ’s evaluation of the opinions in

Dr. Skoczek’s questionnaire is that he said nothing about her
opinions on Swain’s RFC.
The caption of the form that Dr. Skoczek completed indicates
that it was designed for use in conducting both PRT assessments
and RFC assessments, which are two different things, see Social
Security Ruling 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2, 1996)
(explaining that the PRT is used to assess severity at step 2 and
to determine whether an impairment meets or medically equals a
listing at step 3, while “[t]he mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in
the broad categories found in paragraphs B and C of the adult
mental disorders listings in 12.00 of the Listing of Impairments,
and summarized on the PRT [form]”).

14

Here, while Dr. Skoczek addressed issues pertaining to both
her PRT analysis and Swain’s RFC in her questionnaire, it is clear
that the ALJ limited his discussion to the PRT aspect of Dr.
Skoczek’s questionnaire, see 20 C.F.R. §§ 404.1520a(c)(3) &
416.920a(c)(3) (2016) (describing components of the PRT assessment
in force when Dr. Skoczek completed her questionnaire). 10

In other

words, the ALJ said nothing about the opinions that Dr. Skoczek
expressed in the portion of her form devoted to Swain’s RFC,
including her opinion that he would be absent from work more than
three times a month due to his mental impairments or treatment for
them.

Given the ALJ’s obligation to evaluate every opinion in

Swain’s case file, see 20 C.F.R. §§ 404.1527(c) & 416.927(c), his
failure to address Dr. Skoczek’s opinions on Swain’s RFC merits a
remand.

A remand seems especially appropriate in light of: (1)

Dr. Skoczek’s opinion that Swain would be absent from work more
than three times a month because of his impairments or treatment
for them; and (2) the VE’s testimony, in response to a question
from the ALJ, that three or more absences per month would preclude
all employment.

See Hunt v. Colvin, No. 16-cv-159-LM, 2016 WL

7048698, at *8 (D.N.H. Dec. 5, 2016) (remanding where, among other
things, VE testified that four absences per month would preclude

10

The regulation governing the PRT was amended, effective
January 18, 2017, to track the simultaneous changes to the mentalimpairment listings. See note 8, supra.

15

all work but ALJ failed to address treating-source opinion that
claimant would be absent from work four or more days per month).
Of course, the ALJ did evaluate the PRT aspect of Dr.
Skoczek’s questionnaire, but even if I were to construe the ALJ’s
reasons for discounting Dr. Skoczek’s PRT opinions as reasons for
discounting her RFC opinions, the ALJ’s decision falls short of
the mark.

As noted, an ALJ is obligated to give good reasons for

the weight he gives a medical opinion from a treating source.

See

20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).
To meet the “good reasons” requirement, the ALJ’s
reasons must be both specific, see Kenerson v. Astrue,
No. 10–cv–161–SM, 2011 WL 1981609, at *4 (D.N.H. May 20,
2011) (citation omitted), and supportable, see Soto–
Cedeño v. Astrue, 380 Fed. Appx. 1, 4 (1st Cir. 2010).
In sum, the ALJ’s reasons must “offer a rationale that
could be accepted by a reasonable mind.” Widlund v.
Astrue, No. 11–cv–371–JL, 2012 WL 1676990, at *9 (D.N.H.
Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09–
11858, 2011 WL 1155195, at *4 (D. Mass. Mar. 21, 2011)),
report and recommendation adopted by 2012 WL 1676984
(D.N.H. May 14, 2012).
Jenness v. Colvin, No. 15–cv–005–LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015).
The ALJ offered two reasons for discounting Dr. Skoczek’s
opinions: (1) their lack of support from the relatively moderate
findings from Swain’s mental-status examinations; and (2) their
inconsistency with the fact that Swain “simultaneously maintained
multiple part-time jobs,” Tr. 32. 11

11

Supportability and consistency

The ALJ also mentioned his finding that Swain had
experienced no episodes of decompensation, but that finding is so
clearly and directly addressed to one of the four Paragraph B

16

with the record are both factors an ALJ should consider when
evaluating a medical opinion, see 20 C.F.R. §§ 404.1527(c)(3)-(4)
& 416.927(c)(3)-(4), but neither factor provides a good reason for
discounting Dr. Skoczek’s opinion on Swain’s probable absences
from work.
Turning first to supportability, the ALJ says that Dr.
Skoczek’s opinion is not supported by Swain’s mental-status
examinations, which “showed no more than moderate findings,” Tr.
32.

In support of that explanation, the ALJ generally cites 42

pages of Dr. Skoczek’s treatment notes.

Leaving aside the lack of

specificity in the ALJ’s explanation, see McCormick, 2017 WL
4220449, at *7 (remanding where, among other things, ALJ stated
that treating-source opinion “as a whole” was unsupported by and
inconsistent with the record, but did not identify specific
opinions or specific contradictory evidence), there are two
significant problems with the ALJ’s supportability analysis.
The first is the ALJ’s citation of Exhibit 5F as record
support for his statement that “the claimant’s mental status
examinations showed no more than moderate findings,” Tr. 32.
Exhibit 5F consists of notes documenting more than 60 office
visits with Dr. Skoczek between January 5, 2015, and November 16,

criteria of Listings 12.04 and 12.06 that it cannot reasonably be
construed as a reason for discounting Dr. Skoczek’s RFC opinions.

17

2015.

However, it does not appear that a single one of Dr.

Skoczek’s notes actually documents a mental-status examination. 12
Moreover, even if Dr. Skoczek had recorded moderate findings
on mental-status examinations, or if I were to construe the ALJ’s
reference to mental-status examinations not as a supportability
argument, see 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), but as
an argument that Dr. Skoczek’s opinion was inconsistent with the
results of mental-status examinations administered by other
providers, see 20 C.F.R. §§ 404.1527(c)(4) & 416.927(c)(4), the
ALJ’s argument is not persuasive.

That is because he did not

explain how moderate findings on mental- status examinations are
inconsistent with an opinion that Swain would be absent from work
more than three times a month due to his impairments or treatment
for them.
Thus, this case is similar to Hatch v. Colvin, which resulted
in a remand where, among other things, the ALJ rejected a
treating-source opinion as “inconsistent with treatment records
showing ‘mostly normal exams, with nonfocal motor examination, no
spinal tenderness, normal mood and appropriate affect’” but “did
not indicate how nonfocal motor examinations, a lack of spinal

12

The fact that Swain saw Dr. Skoczek 60 times in less than
11 months would seem to support her opinion that he would be
absent from work more than three times a month because of his
impairments or treatment for them. See McCormick, 2017 WL
4220449, at *8 (suggesting that large number of medical
appointments would support treating source’s opinion that claimant
would have more than four absences per month due to impairments or
treatment for them).

18

tenderness, normal mood, and appropriate affect were inconsistent
with an opinion that [the claimant] would be absent from work more
than four days per month . . .,” No. 15-cv-251-JL, 2016 WL
4154707, at *7 (D.N.H. Aug. 5, 2016) (emphasis added, citation to
the record omitted); see also Willey v. Colvin, No. 15-cv-368-JL,
2016 WL 1756628, at *6 (D.N.H. Apr. 7, 2016) (remanding where,
among other things, “ALJ stated that [the claimant’s] capacities
for light lifting and light-exertion sitting and standing were
‘supported by the objective findings during the period, including
normal gait, good strength, and good range of motion’” but “did
not explain how normal gait, good strength, and good range of
motion translate into a capacity

for ‘light lifting and light

exertion sitting and standing’”) (citations to the record
omitted), R. & R. adopted by 2016 WL 1733444 (Apr. 29, 2016).
The ALJ’s second reason for discounting Dr. Skoczek’s
opinion, i.e., Swain’s ability to hold down multiple part-time
jobs, is also not a good reason.

While Swain was working three

part-time jobs at the time of his hearing, it is undisputed that,
several days a week, he was between 15 and 30 minutes late for his
10-hour-a-week recess monitoring job.

Swain’s ability to hold

down a job where he was allowed to be at least 15 minutes late for
a two-hour workday, at least twice a week, is not evidence a
rational mind could accept as a sufficient basis for rejecting Dr.
Skoczek’s opinion that Swain would be absent from work more than
three times a month.

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In sum, presuming that the ALJ even evaluated Dr. Skoczek’s
RFC opinions in the first place, his decision presents no good
reason for discounting Dr. Skoczek’s opinion that Swain would be
absent from work more than three times a month, a limitation that
would preclude any employment.

Because the ALJ either failed to

evaluate Dr. Skoczek’s opinion on probable absence from work, or
failed to give a good reason for discounting it, this matter must
be remanded.

Moreover, because the ALJ’s evaluation of Dr.

Skoczek’s RFC opinions requires a remand, there is no need to
consider his evaluation of Dr. Naimark’s opinions on Swain’s RFC.
IV. Conclusion
For the reasons described above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 7, is
denied, and Swain’s motion to reverse that decision, document no.
6, is granted to the extent that this matter is remanded to the
Acting Commissioner, pursuant to sentence four of 42 U.S.C. §
405(g), for further proceedings consistent with this order.

The

clerk of the court shall enter judgment in favor of Swain and
close the case.
SO ORDERED.
/s/ Paul Barbadoro
Paul Barbadoro
United States District Judge

October 29, 2018
cc:

Christopher G. Roundy, Esq.
Luis A. Pere, Esq.

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