Montgomery v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The Court GRANTS Plaintiff's 10 MOTION for Order Reversing the Decision of the Commissioner and DENIES Defendant's 18 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 5/18/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Rita Rae Montgomery,
Plaintiff,
v.

Civil Action No. 2:16-cv-126

Nancy A. Berryhill, Acting
Commissioner of Social Security,1
Defendant.

OPINION AND ORDER
(Docs. 10, 18)
Plaintiff Rita Rae Montgomery brings this action pursuant to 42 U.S.C. § 405(g)
of the Social Security Act, requesting review and remand of the decision of the
Commissioner of Social Security denying her application for Disability Insurance
Benefits (DIB). Pending before the Court are Montgomery’s motion to reverse the
Commissioner’s decision (Doc. 10), and the Commissioner’s motion to affirm the same
(Doc. 18). For the reasons stated below, Montgomery’s motion is GRANTED, the
Commissioner’s motion is DENIED, and the matter is REMANDED for further
proceedings and a new decision.

1 The Court has amended the caption to reflect the current Acting Commissioner of Social
Security, who assumed office on January 20, 2017. See Fed. R. Civ. P. 25(d).

Background
Montgomery was 43 years old on her alleged disability onset date of January 1,
2011. She is married and has two adult children. (AR 290.) She has a high school
education (AR 36, 214), and worked as a cashier and a baker at a supermarket from 1999
through 2000 and 2007 through 2011 (AR 37, 41, 201, 220). From approximately 2001
through 2006, she stayed home to care for her sick husband. (AR 37–38, 41, 201.)
Montgomery’s physical and mental impairments caused her to gradually cut back
her hours working in the bakery at a Shaw’s supermarket until she eventually could no
longer do the job and she stopped working on October 31, 2011. (AR 41–42, 213, 221.)
Montgomery testified at the administrative hearing that she is unable to work because she
has a bad back; she cannot sit or stand for very long; and she cannot walk far before
having to rest. (AR 38.) She stated that she is “in constant pain all the time” (AR 42;
see also AR 22 (“in constant pain”)), and “the more [she] do[es], the more it hurts” (AR
42–43). Montgomery explained as follows in a January 2013 Function Report: “Between
[f]ibromyalgia, [d]epression, [and] [d]egenerative [d]isc [d]isease[,] I am in constant
pain. I can’t stand very long [and] I can’t sit very long.” (AR 236.) She states that her
only comfortable position is lying down. (AR 38, 229.) Medications, especially Lyrica,
help with her pain, as does using a TENS unit. (AR 44–49.)
In addition, Montgomery testified that she cannot concentrate for more than
5–10 minutes; she is “constantly distracted” to the point where it is difficult to have a
conversation; and she is “very snappy.” (AR 43.) On a typical day, Montgomery
sometimes showers (depending on how tired she is), goes on the computer, uses her

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kindle, watches movies, knits, does some household chores (unloads the dishwasher and
does a load of wash) and cleaning (with pain, and she needs to sit for 15–20 minutes
after), lies down periodically, feeds and throws the ball for her dog, and occasionally
does errands with her husband. (AR 39, 230.)
In December 2012, Montgomery filed her application for disability insurance
benefits. (AR 92.) Therein, she alleges that she stopped working on October 31, 2011
due to depression,2 back pain, right knee pain, and hypothyroidism. (AR 37, 213.) Her
application was denied initially and upon reconsideration, and she timely requested an
administrative hearing. On July 23, 2014, Administrative Law Judge (ALJ) Thomas
Merrill conducted a hearing on the disability application. (AR 32–61.) Montgomery
appeared and testified, and was represented by counsel. A vocational expert also testified
at the hearing. On October 7, 2014, the ALJ issued a decision finding that Montgomery
was not disabled under the Social Security Act from her alleged disability onset date
through the date of the decision. (AR 17–26.) Thereafter, the Appeals Council denied
Montgomery’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (AR 1–3.) Having exhausted her administrative remedies, Montgomery
filed the Complaint in this action on May 10, 2016. (Doc. 1.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step

2 Montgomery has not challenged the ALJ’s findings regarding her mental impairments;
therefore, only her physical impairments are addressed herein.

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requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity” (SGA). 20 C.F.R. § 404.1520(b). If the claimant is not so engaged, step
two requires the ALJ to determine whether the claimant has a “severe impairment.”
20 C.F.R. § 404.1520(c). If the ALJ finds that the claimant has a severe impairment, the
third step requires the ALJ to make a determination as to whether that impairment “meets
or equals” an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the
Listings”). 20 C.F.R. § 404.1520(d). The claimant is presumptively disabled if his or her
impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582, 584
(2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (RFC), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1).
The fourth step requires the ALJ to consider whether the claimant’s RFC precludes the
performance of his or her “past relevant work.” 20 C.F.R. § 404.1520(f). Finally, at the
fifth step, the ALJ determines whether the claimant can do “any other work.” 20 C.F.R.
§ 404.1520(g). The claimant bears the burden of proving his or her case at steps one
through four, Butts, 388 F.3d at 383; and at step five, there is a “limited burden shift to
the Commissioner” to “show that there is work in the national economy that the claimant
can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden
shift to the Commissioner at step five is limited, and the Commissioner “need not provide
additional evidence of the claimant’s [RFC]”).

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Employing this sequential analysis, ALJ Merrill first determined that Montgomery
has engaged in SGA as an apartment rental agent since her alleged disability onset date of
January 1, 2011, and thus “is not eligible for benefits.” (AR 20.) The ALJ explained that
Montgomery “testified that she received and recorded payments and also paid bills
related to renting out three apartments that [she] and her husband own,” and that
“[m]edical records also indicated that [Montgomery] and her husband cleaned the
apartments.” (Id.) The ALJ continued: “[Montgomery] testified [that] she and her
husband received about $4,200 in rental income from the apartments per month, although
she said they were not always rented out.” (Id.) Despite finding that Montgomery
engaged in SGA during the alleged disability period, the ALJ made an “alternative
analysis” (id.), stating: “the analysis will continue through Step 4 of the sequential
evaluation process” (AR 19).
At step two, the ALJ found that Montgomery had the severe impairments of a
spine disorder and fibromyalgia. (AR 20.) Conversely, the ALJ found that
Montgomery’s affective disorder was nonsevere. (AR 20–21.) At step three, the ALJ
determined that none of Montgomery’s impairments, alone or in combination, met or
medically equaled a listed impairment. (AR 21–22.) Next, the ALJ determined that
Montgomery had the RFC to perform “the full range of light work,” as defined in
20 C.F.R. § 404.1567(b). (AR 22.) Given this RFC, the ALJ found that Montgomery
was capable of performing her past relevant work as a cashier and a bakery sales clerk.
(AR 25–26.) The ALJ further noted that, with a full light work capacity, Montgomery “is
deemed not disabled under Medical Vocational Rule 202.13–202.15.” (AR 26.) The

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ALJ concluded that Montgomery had not been under a disability from the alleged onset
date of January 1, 2011 through the date of the decision. (Id.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability 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). A person will be found disabled only if it is determined that his
“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.” 42 U.S.C. §
423(d)(2)(A).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the

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determination is one to be made by the factfinder.”). “Substantial evidence” is more than
a mere scintilla; it means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the
Social Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Montgomery argues that the ALJ made the following errors in his decision
denying disability: (1) finding that Montgomery engaged in SGA during the alleged
disability period; (2) failing to consider if Montgomery had any 12-month period of
disability prior to July 2013, when her back pain improved; (3) assessing Montgomery as
only partially credible; and (4) giving little weight to the opinions of treating nurse
practitioner (NP) Lucy VanHollebeke, RN, FNP. (See Doc. 10-1.) In response, the
Commissioner asserts that, even if the ALJ erred in his step-one determination that
Montgomery engaged in SGA, the error was harmless, and the remainder of the decision
is supported by substantial evidence and complies with the applicable legal standards.
(See Doc. 18.)
I.

Substantial Gainful Activity (SGA)
Montgomery’s first argument is that the ALJ erred in finding that she engaged in

SGA during the alleged disability period. (Doc. 10-1 at 6–9.) Specifically, Montgomery
contends that the ALJ should not have counted her rental income from three apartments
that she owned with her husband as earned income, because she performed few or none

7

of the duties of an apartment rental agent. (See AR 265–69.) According to Montgomery,
it was her husband who regularly cleaned, showed, and rented out the apartments; and
Montgomery herself only completed minimal paperwork, including making deposits and
occasionally paying utility bills, and helped her husband clean the apartments for only
about a five- or six-week period when she was feeling relief from her back pain. (Doc.
10-1 at 8; see AR 39–40, 767.) At the administrative hearing, Montgomery testified that
she spent only 30 or 60 minutes each month doing paperwork related to the apartments.
(AR 40–41.)
As noted above, at step one of the ALJ’s five-step sequential process, the claimant
bears the burden of proving that he or she did not engage in “substantial gainful activity,”
otherwise known as SGA, during the period in question. Butts, 388 F.3d at 383. If the
claimant was able to engage in SGA during that period, the claim is rejected without
consideration of the claimant’s medical condition. See 20 C.F.R. § 404.1571; 42 U.S.C.
§ 423(d)(1)(A); DeRienzis v. Heckler, 748 F.2d 352, 353 (2d Cir. 1984); Bell v. Comm’r
of Soc. Sec., 105 F.3d 244, 245–47 (6th Cir. 1996). “Substantial gainful activity” is
“work activity that is both substantial and gainful.” 20 C.F.R. § 404.1572. Work is
considered “substantial” if it “involves doing significant physical or mental activities,”
regardless of whether it “is done on a part-time basis or if [the claimant] do[es] less,
get[s] paid less, or ha[s] less responsibility than when [he or she] worked before.” Id.
§ 404.1572(a). Work activity is “gainful” if it is “the kind of work usually done for pay
or profit, whether or not a profit is realized.” Id. § 404.1572(b).

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In cases like this that involve a claimant who may have been self-employed, the
ALJ considers the claimant’s activities and their value to his or her business in deciding
whether the claimant engaged in SGA during the alleged disability period. 20 C.F.R.
§ 404.1575(a)(2). The ALJ will not consider the claimant’s income alone because the
amount of income he or she actually receives may depend on “a number of different
factors, such as capital investment and profit-sharing agreements.” Id.; see SSR 83-34,
1983 WL 31256, at *1 (1983) (“Self-employment income alone is not a reliable factor in
determining SGA, since it is influenced not only by the [claimant’s] services but also by
such things as market conditions, capital investments, the services of other people, and
agreements on distribution of profits.”). The ALJ determines whether a self-employed
claimant has engaged in SGA by applying three tests:
(i) Test [O]ne: You have engaged in substantial gainful activity if you render
services that are significant to the operation of the business and receive a
substantial income from the business. . . .
(ii) Test Two: You have engaged in substantial gainful activity if your work
activity, in terms of factors such as hours, skills, energy output, efficiency,
duties, and responsibilities, is comparable to that of unimpaired individuals
in your community who are in the same or similar businesses as their means
of livelihood.
(iii) Test Three: You have engaged in substantial gainful activity if your work
activity, although not comparable to that of unimpaired individuals, is clearly
worth the amount shown in § 404.1574(b)(2) when considered in terms of its
value to the business, or when compared to the salary that an owner would
pay to an employee to do the work you are doing.
20 C.F.R. § 404.1575(a)(2). If the claimant has not engaged in SGA under Test One, the
ALJ must consider whether he or she has engaged in SGA under Tests Two and Three.
Id.

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The ALJ failed to adequately assess whether Montgomery engaged in SGA during
the relevant period under the applicable regulatory tests. The ALJ merely stated as
follows:
[Montgomery] testified that she received and recorded payments and also
paid bills related to renting out three apartments that [she] and her husband
own. Medical records also indicated she and her husband cleaned the
apartments. [Montgomery] testified she and her husband received about
$4,200 in rental income from the apartments per month, although she said
they were not always rented out. . . . [She] has received such income from
their rental property for the past 10 years. [Montgomery] has been able to
engage in [SGA] as an apartment rental agent and is not eligible for benefits.
(AR 20.) As the Commissioner acknowledges, and as noted above, ALJs generally may
not consider self-employment income alone to be a reliable factor in determining SGA
because other variables often influence that income. (See Doc. 18 at 12 (citing 20 C.F.R.
§ 404.1575(a)(2); SSR 83-34, 1983 WL 31256, at *1).) The ALJ did not give sufficient
consideration to Montgomery’s testimony and other evidence indicating that she had very
little involvement in her and her husband’s apartment rental business. (See, e.g., AR 40.)
Despite the ALJ’s erroneous step-one SGA finding, because the ALJ made an
“alternative analysis” of Montgomery’s claim, considering the remaining steps of the
sequential process and finding Montgomery disabled at step four (AR 20), remand is
appropriate only if the ALJ’s further analysis is either erroneous as a matter of law or not
supported by substantial evidence, or if the ALJ relied heavily on his step-one SGA
finding in assessing Montgomery’s credibility or determining her RFC. See, e.g., Cantu
v. Astrue, No. CV–10–335–CI, 2012 WL 553141, at *4 (E.D. Wash., Feb. 21, 2012)
(even if ALJ erred in finding plaintiff engaged in SGA at step one, error was harmless

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because alternative findings at subsequent steps were properly supported); Geister v.
Astrue, Civil No. 09–347–KI, 2010 WL 2867954, at *4 (D. Or. July 20, 2010) (ALJ error
in determining plaintiff engaged in SGA was harmless because ALJ proceeded through
other steps of sequential process “to be thorough”; ALJ did not solely rely on plaintiff’s
ability to engage in SGA in evaluating plaintiff’s credibility and functional limitations;
and substantial evidence supported ALJ’s conclusion that plaintiff was not disabled
during relevant period).
As pointed out by the Commissioner, the ALJ did not rely on his finding that
Montgomery engaged in SGA throughout the rest of his analysis. Therefore, the ALJ’s
step-one error was harmless, and the Court must proceed to analyze the remainder of the
ALJ’s decision.
II.

Medical Improvement since July 2013
Next, Montgomery argues that the ALJ erred by failing to determine if she was

disabled for a 12-month period prior to July 2013, specifically from January 1, 2011
through “at least” July 2013, when she experienced medical improvement of her back
pain due to her use of a TENS unit. (Doc. 10-1 at 13; see id. at 9–10.) Montgomery
claims that the ALJ should have conducted a medical improvement analysis under 42
U.S.C. § 423(f) to determine whether she was still disabled after July 2013. This novel
argument is that, because the ALJ found Montgomery could do only light work after she
had medically improved in July 2013, he would have to find that she could do less than
light work before that date, when her medical condition was worse. (See Doc 10-1 at 10

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(“If the ALJ considered that Ms. Montgomery’s [RFC] was for ‘light’ after [her]
improvement, then it stands to reason that [her] RFC was much reduced prior to that
time.”); see also Doc. 21 at 4–5.)
But the fact that Montgomery’s medical condition improved as of July 2013 does
not establish that she was unable to work prior to that date; it does not even necessarily
show, in and of itself, that she could do less than light work (i.e., sedentary work or less)
prior to that date. Moreover, because the ALJ did not find Montgomery disabled at any
time, he was not obligated to conduct a “medical improvement” analysis under the
applicable regulation. See 42 U.S.C. § 423(f)(1)(A); Hathaway v. Berryhill, No. 161500-CV, 2017 WL 1380549, at *1 (2d Cir. Apr. 18, 2017) (medical improvement
analysis conducted only “[a]fter a person has been found to be entitled to [social
security] disability benefits” (emphasis added)); De Leon v. Sec’y of Health & Human
Servs., 734 F.2d 930, 937 (2d Cir. 1984) (“the [Commissioner] must apply the medical
improvement standard in deciding whether to terminate benefits to an individual
previously found to be disabled” (emphasis added)). Furthermore, in determining
Montgomery’s RFC, the ALJ did in fact consider her condition during periods when her
impairments were at their worse, including when she had treatment for her fibromyalgia
and back pain, and an MRI identifying disc degeneration and herniation. (See AR
23–24.) For these reasons, the Court finds that the ALJ did not err in neglecting to
include in his decision a finding regarding whether Montgomery was disabled for a 12month period prior to her medical improvement in July 2013.

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III.

Credibility Assessment
Next, Montgomery argues that the ALJ erred in finding her “statements

concerning the intensity, persistence[,] and limiting effects of her symptoms” “not
entirely credible.” (Doc. 10-1 at 10; see AR 22, 25.) According to Montgomery, the ALJ
should have found her credible because of her “candid statements of improvement with
[a] TENS unit” and because the record “shows a longitudinal record of seeking medical
treatment for pain, referral to specialists . . . , and trials of a variety of treatment
modalities.” (Doc. 10-1 at 11.) Moreover, Montgomery claims that the ALJ erred in
“fail[ing] to state any specific item in the record or in his decision that supports [his]
adverse credibility finding.” (Id.) The Commissioner responds that the ALJ properly
applied the relevant criteria to assess Montgomery’s credibility, and that assessment is
supported by substantial evidence. (Doc. 18 at 15–17.)
After conducting a thorough review of the record, the Court finds that the ALJ
erred in failing to credit Montgomery’s account of the severity of her impairments,
particularly her back pain. If supported by objective medical evidence, a claimant’s
subjective evidence of pain is entitled to great weight. Simmons v. U.S. R.R. Ret. Bd.,
982 F.2d 49, 56 (2d Cir. 1992). If, however, a claimant’s subjective evidence of pain
suggests a greater severity of impairment than can be demonstrated by objective evidence
alone, the ALJ must consider other evidence, such as the claimant’s daily activities,
duration and frequency of pain, medication, and treatment. See 20 C.F.R. §
404.1529(c)(3). Here, in assessing Montgomery’s credibility, the ALJ considered

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Montgomery’s daily activities, including caring for her pet, preparing simple meals,
managing her own personal care, doing some housework, shopping for groceries with
help, driving a car, knitting and embroidering, and watching movies and television.
(AR 20.) The ALJ also considered that Montgomery “was noted to be doing well and
requested a note allowing her to return to work” in April 2011, and that treating physician
Dr. Jerry Tarver encouraged Montgomery to be active and found that her MRI results did
not “correlate with her presentation.” (AR 23.) The ALJ further considered the type and
effectiveness of medication used by Montgomery, other treatment Montgomery received
for her impairments, and that Montgomery stopped taking Vicodin and meloxicam in
December 2011. (Id.)
Despite considering this evidence, the ALJ gave little attention to evidence
supporting Montgomery’s complaints of pain. For example, treating primary care
physician Dr. Elizabeth Newman opined, based on her review of Montgomery’s April
2012 MRI of her lower back, that “there is one disc in [the] spine that could be causing
[Montgomery’s] back pain [and] tingling/numbness.” (AR 586.) And Dr. Tarver, a spine
disorder specialist, diagnosed Montgomery with lumbar spondylosis and gave
Montgomery a number of bilateral L5-S1 facet joint injections before concluding that
they provided only short-term relief. (AR 559, 562, 564, 681, 687.) Additionally,
Montgomery reported to a treating physical therapist that she had regular pain that
increased with activity or weight-bearing positions and decreased when lying down. (AR
749.) Most importantly, as discussed below, NP VanHollebeke, Montgomery’s treating

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nurse practitioner during the relevant period, opined that Montgomery was severely
limited in her ability to function and made no statements indicating that Montgomery was
exaggerating her symptoms, failing to comply with treatment recommendations, or
attempting to avoid work for reasons other than her pain and other impairments. (See AR
677 (“[d]ebilitating low back pain”), 709 (“taking hydrocodone 1–2 per day for past 1–2
mo[nths] for pain so can function”), 720–28, 733 (“cannot walk for 5 minutes without
pain”).)
Generally, the record shows a longitudinal record of Montgomery seeking medical
treatment to address her pain, referral to specialists (a rheumatologist, a spine disorder
specialist, and a physical therapist), and trials of several different treatment modalities
including facet joint injections, physical therapy, use of a TENS unit, and different
dosages and types of pain medication. (See, e.g., AR 38, 44–48, 457, 562, 564–65, 586,
595, 599, 677, 681, 687, 709, 711, 741, 749, 774.) This record favors a positive
credibility finding. The Social Security Administration explained:
In general, a longitudinal medical record demonstrating an individual’s
attempts to seek medical treatment for pain or other symptoms and to follow
that treatment once it is prescribed lends support to an individual’s
allegations of intense and persistent pain or other symptoms for the purposes
of judging the credibility of the individual’s statements. Persistent attempts
by the individual to obtain relief of pain or other symptoms, such as by
increasing medications, trials of a variety of treatment modalities in an
attempt to find one that works or that does not have side effects, referrals to
specialists, or changing treatment sources may be a strong indication that the
symptoms are a source of distress to the individual and generally lend support
to an individual’s allegations of intense and persistent symptoms.

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SSR 96-7P, 1996 WL 374186, at *7 (July 2, 1996).3 Moreover, Montgomery’s testimony
at the administrative hearing regarding her daily activities reveals that they are quite
limited and certainly not exerting, as the ALJ suggests. (See AR 38–39.)
If the ALJ’s credibility findings are supported by substantial evidence, the court
must uphold the ALJ’s decision to discount a claimant’s subjective complaints. Aponte v.
Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citing
McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 704 (2d Cir. 1980)); see
Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013). But here, the ALJ’s evaluation of
Montgomery’s credibility does not properly account for the entire record, and thus is not
supported by substantial evidence.

3 SSR 96-7p was superseded by SSR 16-3p, effective March 16, 2016. See SSR 16-3p, 2016 WL
1119029, at *1 (2016). SSR 16-3p eliminates the word “credibility” from the sub-regulatory policy
because the regulations do not use the term. Id. The Seventh Circuit recently explained the change as
follows:

Recently the Social Security Administration announced that it would no longer assess the
“credibility” of an applicant’s statements, but would instead focus on determining the
“intensity and persistence of [the applicant’s] symptoms.” The change in wording is meant
to clarify that [ALJs] aren’t in the business of impeaching claimants’ character[s];
obviously [ALJs] will continue to assess the credibility of pain assertions by applicants,
especially as such assertions often cannot be either credited or rejected on the basis of
medical evidence.
Stoddard v. Berryhill, CIVIL ACTION NO. 3:16-CV-1591, 2017 WL 930611, at *14 n.7 (M.D. Pa. Mar.
9, 2017) (citation omitted). Substantively, SSR 16-3p’s guidance concerning the evaluation of subjective
symptoms in disability claims is largely consistent with the policies set out in SSR 96-7p regarding the
assessment of the credibility of an individual’s statements. Id. (citing Sponheimer v. Comm’r of Soc. Sec.,
Civil No. 15-4180 (RBK), 2016 WL 4743630, at *6 n.2 (D.N.J. Sept. 8, 2016)). In any event, because the
ALJ issued his decision prior to the effective date of SSR 16-3p, his obligation was to follow the guidance
set out in SSR 96-7p, which was in effect on the date of his decision. Therefore, the Court references the
standards set out in SSR 96-7p here.

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IV.

Medical Opinions of NP Lucy VanHollebeke
Finally, Montgomery asserts that the ALJ erred in giving little weight to the

opinions of treating nurse practitioner VanHollebeke regarding Montgomery’s physical
limitations. (Doc. 10-1 at 13–15; see AR 24.) NP VanHollebeke was Montgomery’s
primary treating source throughout the alleged disability period. (See AR 474, 767.) On
February 4, 2013, she submitted a letter to the State of Vermont Disability Determination
Services wherein she stated that Montgomery was applying for disability due to
fibromyalgia and severe back pain. (AR 676.) NP VanHollebeke specified that
Montgomery’s back pain was limiting her ability to sit for more than 15–20 minutes,
stand for more than 15 minutes, walk for more than 20 minutes, and lift more than
approximately two pounds. (Id.) Several months later, in July 2013, NP VanHollebeke
similarly opined in a Medical Source Statement of Ability to Do Work-Related Activities
(Physical) (MSS) that Montgomery could sit for only 15–20 minutes, stand for only
15 minutes, and walk for only 20 minutes; and she was required to change positions
every 15–20 minutes. (AR 724.) NP VanHollebeke further opined, again, that
Montgomery could lift/carry no more than two pounds. (AR 723.)
The ALJ gave little weight to NP VanHollebeke’s opinions for three principal
reasons: (1) they are inconsistent with NP VanHollebeke’s own treatment notes; (2) they
are “based on [Montgomery’s] self-report and not supported by independent exam notes
and observation by [NP VanHollebeke]”; and (3) they were made by a nurse practitioner
rather than an “acceptable medical source” as defined in the regulations. (AR 24.)

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It is true that ALJs are not required to afford the same level of deference to the
opinions of “other sources,” including nurse practitioners, as they are to the opinions of
“acceptable medical sources” like physicians and psychologists. See 20 C.F.R. §§
404.1502, 404.1513(a), (d)4; SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
“[W]hile the ALJ is certainly free to consider the opinions of . . . ‘other sources’ in
making his overall assessment of a claimant’s impairments and residual abilities, those
opinions do not demand the same deference as those of a treating physician.” Genier v.
Astrue, 298 F. App’x 105, 108 (2d Cir. 2008). Nonetheless, “other source” opinions are
important, and ALJs are required to evaluate them in some depth. SSR 06-03p, 2006 WL
2329939, at *3 (“Opinions from these [other] sources, who are not technically deemed
‘acceptable medical sources’ under our rules, . . . should be evaluated on key issues such
as impairment severity and functional effects, along with the other relevant evidence in
the file.”); see Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir.1983) (stating
opinion of nurse practitioner who treated claimant on regular basis entitled to “some extra
consideration”). The Social Security Administration directs ALJs to use the same factors
for the evaluation of “other source” opinions as are used to evaluate the opinions of
“acceptable medical sources.” SSR 06-03p, 2006 WL 2329939, at *4. These factors
include the length of the treatment relationship, the frequency of evaluation, the degree to
which the medical source provided evidentiary support for his or her opinions, the

4 Effective March 27, 2017, 20 C.F.R. § 404.1513 has been amended, as have other regulations
and SSRs cited herein (see, e.g., 20 C.F.R. § 404.1527). Nonetheless, because Montgomery’s social
security application was filed before the new regulations and SSRs went into effect, the Court reviews the
ALJ’s decision under the earlier regulations and SSRs.

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opinions’ consistency with the record as a whole, and any other relevant factors. Id.; see
20 C.F.R. § 404.1527(c); Evans v. Colvin, 649 F. App’x 35, 38–39 (2d Cir. 2016).
Montgomery claims that the length and nature of NP VanHollebeke’s treatment
relationship with Montgomery and the objective supportability of her opinions, provide
“strong support” for NP VanHollebeke’s opinions. (Doc. 10-1 at 14.) In response, the
Commissioner states that the ALJ considered the relevant factors––including the nature
of the treatment relationship, whether NP VanHollebeke was a specialist, whether NP
VanHollebeke examined Montgomery, and whether NP VanHollebeke’s opinions were
supported and consistent with the record––in determining the value of NP
VanHollebeke’s opinions. (Doc. 18 at 18; see AR 23–25.) Although the ALJ did in fact
consider (or at least mention) these factors, he did not seem to place value on the most
relevant ones. Specifically, he does not appear to have given value to the fact that NP
VanHollebeke was Montgomery’s primary caregiver for many years, treating
Montgomery on a regular basis during the alleged disability period. More importantly,
the ALJ’s findings that NP VanHollebeke’s opinions were inconsistent with her treatment
notes and based only on Montgomery’s self-reporting are not supported by substantial
evidence.
In her June 2013 MSS, NP VanHollebeke stated that her opinions regarding
Montgomery’s physical limitations were supported not solely by Montgomery’s selfreporting at appointments with her, but also by the April 2012 MRI that revealed
“bilateral foram[inal] narrowing [with] mass effect on [the] LS nerve roots,” and by

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“clinic notes” dated February 12, 2013 and earlier from the Vermont Interventional Spine
Center. (AR 723; see AR 586, 677–79, 681–91.) The April 2012 MRI does indeed
support NP VanHollebeke’s opinions regarding Montgomery’s physical limitations due
to back pain, concluding as follows: “Disc degeneration at the L5-S1 level with facet
posterior arthropathy and bilateral foraminal narrowing with possible mass effect on the
L5 nerve roots.” (AR 586.) As discussed in the section above regarding the ALJ’s
credibility assessment, treating physician Dr. Newman reviewed this MRI and found that
“there is one disc in [the] spine that could be causing [Montgomery’s] back pain [and]
tingling/numbness.” (Id.) Consistent with this evaluation, treating physician and back
specialist Dr. Tarver diagnosed Montgomery with lumbar spondylosis and gave
Montgomery a number of bilateral L5-S1 facet joint injections before concluding that
they provided only short-term relief. (AR 559, 562, 564, 677, 681, 687.) NP
VanHollebeke’s treatment notes from the relevant period are also consistent with her
opinions and with the MRI. (See, e.g., AR 677 (“[d]ebilitating low back pain”),
709 (“taking hydrocodone 1–2 per day for past 1–2 mo[nths] for pain so can function”),
720–28, 733 (“cannot walk for 5 minutes without pain”).)
Given this evidence, the Court finds that the ALJ’s assessment that NP
VanHollebeke’s opinions are inconsistent with her own treatment notes and based solely
on Montgomery’s own self-report, are not supported by substantial evidence.
Accordingly, the matter must be remanded for the ALJ to reanalyze NP VanHollebeke’s
opinions in light of the factors set forth in 20 C.F.R. § 404.1527(c).

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Conclusion
As stated above, although the ALJ’s step-one error regarding Montgomery’s SGA
was harmless and therefore not grounds for remand, remand is required due to the ALJ’s
improper analysis of NP VanHollebeke’s opinions and unsupported assessment of
Montgomery’s credibility. Also, while on remand, the Court recommends that the ALJ
explore a closed period of disability, ending in or after July 2013, when Montgomery’s
lower back pain improved due to her use of a TENS unit. (See Doc. 10-1 at 9
(Montgomery conceding that “[t]he record shows that [her] medical condition improved
in July 2013”).)
The Court thus GRANTS Montgomery’s motion (Doc. 10), DENIES the
Commissioner’s motion (Doc. 18), and REMANDS the matter for further proceedings
and a new decision in accordance with this ruling.
Dated at Burlington, in the District of Vermont, this 18th day of May, 2017.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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