Whittaker v. US Social Security Administration, Commissioner

Filing 12

///ORDER - For the foregoing reasons, and for those given in the court's earlier order, the claimant's 7 Motion to Reverse Decision of Commissioner is granted, and the case is remanded to the Commissioner for further proceedings. The Commissioner's 8 Motion to Affirm Decision of Commissioner is denied. So Ordered by Judge Steven J. McAuliffe.(lw) Modified on 8/6/2019 to add: three slashes (lw).

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Kathleen Whittaker,
Claimant
v.

Case No. 18-cv-379-SM
Opinion No. 2019 DNH 123

Andrew Saul, Commissioner,
Social Security Administration,
Defendant

O R D E R

Pursuant to 42 U.S.C. § 405(g), claimant, Kathleen
Whittaker, moves to reverse or vacate the Commissioner’s
decision denying her application for Disability Insurance
Benefits under Title II of the Social Security Act (the “Act”),
42 U.S.C. § 423.

The Commissioner objects and moves for an

order affirming her decision.

On April 2, 2019, the court asked the parties to file
supplemental legal memoranda, explaining why the case should not
be remanded for further proceedings before the ALJ with respect
to the treatment notes of claimant’s treating psychiatrist, Dr.
Isabel Norian, and the medical opinions noted therein.

As set

out in the court’s April, 2019, order, an independent review of
the record suggested that the ALJ either failed to adequately
develop the record with respect to the mental health opinions of
claimant’s treating psychiatrist, or failed to adequately

explain his reasons for discounting the psychiatrist’s opinions,
or both.

Neither claimant nor the Commissioner argued the point

in their initial briefing, however, so the court requested
supplemental briefing on the issue.

Having reviewed the

parties’ supplemental briefing, it is apparent that remand is
necessary.

A similar issue was addressed in Bergeron v. Astrue, No.
CIV. 09-CV-070-SM, 2009 WL 3807156, at *5 (D.N.H. Nov. 10,
2009):
[Social Security Ruling 96-5p, 1996 WL 374183, at *2
(S.A.A. July 2, 1996)] 1 describes the Social Security
Administration's policies for dealing with medical source
opinions on issues reserved to the Commissioner, such as
Dr. Ford's opinion that Bergeron was incapacitated.
According to SSR 96–5p, “adjudicators must always carefully
consider medical source opinions about any issue, including
opinions on issues that are reserved to the Commissioner.”
1996 WL 374183, at *2. After explaining that “treating
source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or
special significance, the Ruling continues, explaining:
[O]pinions from any medical source on issues
reserved to the Commissioner must never be
ignored. The adjudicator is required to evaluate
all evidence in the case record that may have a
bearing on the determination or decision of
disability, including opinions from medical
sources about issues reserved to the
Commissioner. If the case record contains an
opinion from a medical source on an issue
reserved to the Commissioner, the adjudicator
must evaluate all the evidence in the case record

1

SSR 96-5p was rescinded on March 27, 2017, but was in
effect when the ALJ rendered his decision in this case on March
1, 2017. See Rescission of Social Security Rulings 96-2p, 965p, and 06-3p, 82 Fed. Reg. 15,263-01 (Mar. 27, 2017).
2

to determine the extent to which the opinion is
supported by the record.
Id. at *3 (emphasis added). Finally, the Ruling directs
that “[t]reating source opinions on issues reserved to the
Commissioner will never be given controlling weight [but]
the notice of the determination or decision must explain
the consideration given to the treating source's
opinion(s).” Id. at *6 (emphasis added).
See also Paquet v. Berryhill, No. 18-cv-205-JL, 2019 WL 1487585,
at * (D.N.H. Apr. 4, 2019) (“While treating-source opinions on
issues reserved to the Commissioner are ‘never entitled to
controlling weight or special significance,”

Social Security

Ruling 96-5p, 1996 WL 374183, at *2 (S.A.A. July 2, 1996), such
opinions ‘must never be ignored,’ id. at *3, and an ALJ ‘must
explain the consideration given to [such] opinion(s),’ id. at
*6).

As the court noted in its April, 2019, order, it is simply
not clear from this record whether the ALJ considered the
opinions of Dr. Norian regarding claimant’s mental health
condition(s) and related disabilities as they may affect her
functional capacity.

See Dube v. Astrue, 781 F. Supp. 2d 27, 35

(D.N.H. 2011) (“a court must be able to determine whether the
ALJ considered the contrary evidence and chose to discredit it,
or whether it was ‘simply ignored.’”
F. Supp. 2d 3, 14 (D.N.H. 2000)).

(quoting Lord v Apfel, 114

The parties’ supplemental

briefing fails to shed any light on the matter.

In any event,

“it is not the task of the court (or for that matter, counsel

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for the Commissioner) to articulate for the first time at the
appeals stage ‘good reasons’ for rejecting a treating source’s
opinion.”

Bergeron, 2009 WL 3807156, at *5 (citation omitted). 2

Accordingly, the case is remanded so that the ALJ may
appropriately consider the opinions of Dr. Norian, and, if they
are rejected, to explain his reasons for doing so.
Conclusion
For the foregoing reasons, and for those given in the
court’s earlier order, the claimant’s motion to reverse and
remand (document no. 7) is GRANTED, and the case is remanded to
the Commissioner for further proceedings.

The Commissioner’s

motion to affirm (document no. 8) is DENIED.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 6, 2019
cc:

Karl E. Osterhout, Esq.
Daniel W. McKenna, Esq.
Luis A. Pere, Esq.

2

As the court also noted in Bergeron, 2009 WL 3807156, at
*5, n.2, in some circumstances, failure to explain the
consideration given to a treating source's opinion on an issue
reserved to the Commissioner can be a harmless error that does
not require remand, but this is not that case. In Fletcher v.
Astrue, Civil No. 08–150–B–W, 2009 WL 214579 (D. Me. Jan. 28,
2009), for example, the court ruled that the ALJ committed
harmless error by failing to explain the consideration given to
a treating physician's opinion. However, the doctor in that
case saw the claimant only twice, unlike Dr. Norian, who saw
Whittaker extensively over the course of several years.
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