Whittaker v. US Social Security Administration, Commissioner

Filing 9

ORDER re: 7 Motion for Order Reversing Decision of Commissioner; 8 Motion for Order Affirming Decision of Commissioner. The parties shall file supplemental legal memoranda on or before April 30, 2019, explaining why the c ase should not be remanded for further proceedings before the ALJ with respect to Dr. Norians treatment notes and the medical opinions noted therein. (Supplemental Legal Memorandas due 4/30/2019.) So Ordered by Judge Steven J. McAuliffe. (lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Kathleen Whittaker,
Claimant
v.

Case No. 18-cv-379-SM
Opinion No. 2019 DNH 055

Nancy A. Berryhill,
Acting 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 Acting 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 Acting Commissioner objects and moves for

an order affirming her decision.

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, March 20, 2015.
Rec. at 26.

Admin

He next concluded that claimant suffers from the

following severe impairments: “depression and anxiety.”
Rec. at 26.

Admin.

The ALJ also considered claimant’s diagnoses of

hypertension and hypothyroidism, and the effects of claimant’s
obesity on her ability to engage in work-related activities, and
determined that all were non-severe impairments.

The ALJ then

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 27-29.

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: the
ability to perform and sustain attention and
concentration for simple tasks (defined as 1 to 3 step
tasks) and an ability to maintain effort for two hours
blocks of time over the course of an eight hour
workday and standard work week in a setting that would
be permissive of some degree of self pacing and no
fast-paced production requirements, as well as no
immediate deadlines. In terms of social interactions,
the claimant retains the ability to engage in brief
superficial interaction with the general public
(simply conversations such as “hello” and “how are
you?” and answering basic questions, but not engaging
in prolonged conversations or interacting for
prolonged periods of time). Similarly, an ability to
engage in typical interactions with coworkers and
supervisors while completing simple tasks and an
ability to maintain adequate personal grooming and
hygiene. In terms of stress tolerance[,] the ability
to sustain work in a stable work setting, adapt to
minor changes in routine while benefiting from
external psychosocial support. An ability to remain
capable of independent goal oriented behavior and

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maintain awareness of typical hazards and travel
independently.
Admin. Rec. at 29.

In light of those restrictions, and based on

the testimony of the vocational expert, the ALJ concluded that
claimant was not capable of performing her past relevant work.
Id. at 34.

Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform.

Relying on

the testimony of the vocational expert and the Dictionary of
Occupational Titles, the ALJ concluded that “the claimant is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.”
35.

Id. at

The ALJ then concluded that claimant was not “disabled,” as

that term is defined in the Act, through the date of his
decision.

Discussion
Claimant challenges the ALJ’s decision, asserting that the
ALJ erred in: (i) failing to properly analyze the opinion
evidence in the record; and (ii) assessing claimant’s
credibility.

The court’s independent review of the record

suggests, however, that the ALJ failed to either 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.
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While neither claimant nor the Acting Commissioner argues the
point, remand may be required to permit the ALJ to consider the
matter in the first instance.

See Silva v. Colvin, CA 14–301S,

2015 WL 5023096, at 13 (D.R.I. Aug. 24, 2015) (“it is

. . .

clear that this Court may, and should, raise issues sua sponte
when the review of the record suggests that justice requires
it”).

Included within the administrative record, but absent from
the ALJ’s discussion, are notes expressing medical opinions by
claimant’s treating psychiatrist, Dr. Isabel Norian, that appear
to be directly relevant to claimant’s functional capacity.

Dr.

Norian has been treating claimant for anxiety and depression
since at least April, 2014.

Claimant saw Dr. Norian at least

monthly (except for a brief period when Dr. Norian was on
maternity leave, during which period claimant saw another mental
health provider).

Dr. Norian’s records, especially records

dated after March, 2015, consistently note claimant’s distress,
depression and anxiety.

See, e.g., Admin. Rec. at 315-316; 318-

319; 406-407; 483-84; 486; 488-489; 493; 504-505, 507-508.

Dr. Norian opined on claimant’s functional limitations on
several occasions.

Following a December 18, 2015, appointment

with claimant, for example, Dr. Norian concluded that claimant:
“[r]emains depressed and anxious.
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The anxiety and depression

are significantly interfering with her functioning.

It is not

conceivable that she could function meaningfully at a work place
at this time.”

Admin. Rec. at 484.

Norian noted the following:
and anxious.
to-day.

On January 8, 2016, Dr.

Claimant “[p]resents as depressed

She continues to have difficulty functioning day-

She is provided continued support around her inability

to work at this time.

She is encouraged to pursue a letter of

appeal regarding her disability.”

Admin. Rec. at 486.

On

February 2, 2016, Dr. Norian wrote that claimant: “remains
depressed and anxious with modest initial benefit reported after
an increase in Abilify.

She is engaging in services despite low

motivation and difficulty functioning.

It is this physician’s

opinion, based on in-clinic assessment, that she remains unable
to perform work of any kind at this time.

She is supported in

her decision to appeal the disability determination.”
Rec. at 488-489.

Admin.

Finally, on October 25, 2016, Dr. Norian

assessed that claimant “presents with continued depressive and
anxiety symptoms that have impaired her functioning.”

Admin.

Rec. at 508.

It is well settled that an ALJ need not directly address
every piece of evidence in the administrative record.

See Lord

v Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000) (discussing cases).
However, “an ALJ may not simply ignore relevant evidence,
especially when that evidence supports a claimant’s cause.”
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Dube v. Astrue, 781 F. Supp. 2d 27, 35 (D.N.H. 2011) (quoting
Lord, 114 F. Supp. 2d at 13.

“Moreover, 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.’”
(quoting Lord, 114 F. Supp. 2d at 14).

Id.

“For a reviewing court

to be satisfied that an ALJ's decision was supported by
substantial evidence, that decision must take into account
whatever in the record fairly detracts from its weight.”

Dube,

781 F. Supp. 2d at 35 (quoting Lord, 114 F. Supp. 2d at 14).

It is simply not clear from the current record whether the
ALJ considered the opinions of Dr. Norian concerning claimant’s
mental health condition(s) and related disabilities as they may
affect her functional capacity, and, if those opinions were
rejected, or given little weight, why?

Or, if further

development of the record in that regard was necessary, why the
record was not fully developed.

Because Dr. Norian’s opinions

are plainly inconsistent with the ALJ’s decision, it was error
for the ALJ not to at least “recognize the contradiction and
state his reasons for deciding not to accept [them],” or to
develop evidence related to her opinions.
at 35.

Dube, 781 F. Supp. 2d

“While an ALJ, not the reviewing court, resolves

conflicts in the evidence, an ALJ may not adopt one view of the
evidence, ‘without addressing the underlying conflict.’”

Id.

(quoting Nguyen v. Callahan, 997 F. Supp. 179, 182 (D. Mass.
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1998).

The ALJ does reference the notes in passing by citation,

and the hearing transcript discloses that claimant’s psychiatric
condition was mentioned, again only in passing, but the decision
does not address the treatment or opinion of Dr. Norian.

While

remand may well be in order, so that the ALJ may appropriately
consider and address Dr. Norian’s opinions, it seems odd that
neither party mentions the issue.

Perhaps there is a reason

that is not obvious, but is, nevertheless dispositive.

Conclusion
The parties shall file supplemental legal memoranda on or
before April 30, 2019, explaining why the case should not be
remanded for further proceedings before the ALJ with respect to
Dr. Norian’s treatment notes and the medical opinions noted
therein.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
April 2, 2019
cc:

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

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