UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steven R. Crandlemere
v. Case No. 15-cv-516-JL Opinion No. 2017 DNH 192 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Steven Crandlemere moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423. 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 consistent
with this order.
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 . . . .
42 U.S.C. § 405(g). However, the court “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)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence. Indeed, the
2 resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 16, is part of the court’s
record and will be summarized here, rather than repeated in
full.
In 2004, diagnostic imaging of Crandlemere’s lumbar spine
revealed degenerative disk disease at L5-S1 and mild
degenerative changes at L4-L5. On June 3, 2009, while at work,
Crandlemere aggravated his back condition when he fell off a
standup mower after hitting a bump. On November 19, 2009, he 3 underwent back surgery. His post-surgery treatment has included
physical therapy, several different pain medications,1 and
various injections.2 On four occasions, starting on August 30,
2010, one of Crandlemere’s treating physicians, Dr. David Tung,
described Crandlemere’s surgery this way: “failed back surgery
[status post] laminotomy/discectomy with left L5-S1
radiculopathy.”3 Administrative Transcript (hereinafter “Tr.”)
451, 460, 471, 486.
The record in this case includes more than a dozen opinions
on Crandlemere’s physical capacity for work. Those opinions are
reported in: (1) a Progress Note by Dr. Jie Cheng, a treating
physician; (2) New Hampshire Workers’ Compensation Medical Forms
(“Comp Forms”) completed by four different treating physicians,
Dr. Cheng (one form), Dr. Davis Clark (two forms), Dr. Clifford
Levy (eight forms), and Dr. Tung (four forms); (3) a Physical
1 In the year following his surgery, Crandlemere was prescribed Ocycodone, Lidoderm patches, Flexeril, Neurotrin, Roxycodone, and Percocet. In October of 2010, he was diagnosed with opioid dependence.
2 Specifically, he was given a trans-foraminal epidural steroid injection on May 17, 2010, and a sacroiliac joint injection on October 15, 2010.
3 Radiculopathy is a “[d]isorder of the spinal nerve roots.” Stedman’s Medical Dictionary 1622 (28th ed. 2006).
4 Residual Functional Capacity (“RFC”)4 Assessment performed by Dr.
Burton Nault, a non-examining state-agency physician; (4) a
Medical Source Statement of Ability to Do Work-Related
Activities (Physical) completed by Dr. Levy; (5) a Medical
Source Statement of Ability to Do Work-Related Activities
(Physical) completed by Dr. Ihab Ziada, a treating physician;
and (6) a physical RFC assessment performed by Dr. Marcia
Lipsky, a non-examining state-agency physician. The opinions
that are relevant to the court’s analysis of the ALJ’s decision
are described below.
Dr. Nault’s RFC assessment is dated January 26, 2010,
approximately two months after Crandlemere’s back surgery. In
it, he opined that by June 3, 2010, i.e., 12 months after the
alleged onset date (“AOD”) of Crandlemere’s claimed disability,
he would be able to lift/carry 20 pounds occasionally and 10
pounds frequently, stand/walk (with normal breaks) for about six
hours in an eight-hour work day, sit (with normal breaks) for
about six hours in an eight-hour workday, and push/pull with no
4 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1519.
5 limitations other than those for lifting and carrying.5 Dr.
Nault further opined that Crandlemere would be able to
occasionally perform the postural activities of climbing (ramps,
stairs, ladders, ropes, and scaffolds), balancing, stooping,
kneeling, crouching, and crawling.
In the narrative portion of his RFC assessment, Dr. Nault
described Crandlemere’s back injuries and the treatment he had
received before his surgery. He then described the effects of
Crandlemere’s surgery:
Follow up on 12/21/09 by Dr. Levy supported no neurological deficits and a negative straight leg raising. He recommended physiotherapy, which the claimant states he is getting now, but is still having some residual back pain.
The claimant currently states he is getting improvement with physiotherapy and home exercise program on a slow basis, helped by stretching exercises and a treadmill.
Tr. 334. Dr. Nault concluded his RFC assessment with the
following summary:
At this time the claimant has [medically determinable impairments] established as noted above [i.e., degenerative disc disease of the lumbar spine status post discectomy at L5-S1]. A listings level impairment is not supported; however, he is still considered totally disabled at this time, but it is reasonable to assume that within 12 months of his AOD
5 Those exertional limitations correlate to a capacity for light work. See 20 C.F.R. § 404.1567(b). 6 he should return to a functional capacity as addressed in Section 1.
Tr. 334. Finally, while he described Crandlemere as “totally
disabled” as of the date of his assessment, Dr. Nault did not
identify the specific limitations that rendered him so.6
On July 28, 2010, Dr. Levy completed a Comp Form. In it,
he opined that on that date, despite the June 3, 2009, injury,
Crandlemere: (1) had no limitation on his ability to sit,
stand, or walk; (2) had several postural limitations; and (3)
could return to work for a maximum of four to eight hours a day,
three to five days a week, so long as he did not have to
lift/carry more than ten pounds occasionally and five pounds
frequently.
Dr. Levy’s Medical Source Statement of Ability to Do Work-
Related Activities (Physical) is dated December 8, 2010. In it,
he opined that Crandlemere could lift/carry 10 pounds
occasionally and less than 10 pounds frequently, that his
abilities to sit, stand, and walk were unaffected by his
impairment, and that he could occasionally perform the postural
activities of climbing, kneeling, crouching, crawling, and
6 That lack of specificity means that there is no frame of reference for evaluating Crandlemere’s progress toward achieving the functional capacity that Dr. Nault predicted.
7 stooping. Finally, the form that Dr. Levy completed asked for
his opinion on whether Crandlemere was “capable of gainful
employment on a sustained basis,” Tr. 441, and Dr. Levy
responded: “Yes, 4-8 hours per day 3-5 hrs per day,”7 id.
Dr. Ziada’s Medical Source Statement of Ability to Do Work-
Related Activities (Physical) is dated July 16, 2013. In it, he
opined that Crandlemere could lift/carry 10 pounds occasionally
and less than 10 pounds frequently, stand/walk (with normal
breaks) for less than two hours in an eight-hour work day, and
sit (with normal breaks) for less than six hours in an eight-
hour workday. He also opined that Crandlemere needed to
“periodically alternate sitting and standing to relieve pain or
discomfort,” Tr. 1219, and was limited in his ability to
push/pull. He then indicated that his conclusions regarding
exertional limitations were supported by the following findings:
“lumbar spondylosis with radiculopathy [and] back pain with
7 Given Dr. Levy’s prior opinion that Crandlemere could work four to eight hours per day, three to five days per week, see Tr. 435, the court presumes, as does the Acting Commissioner, that in his December 8 Medical Source Statement, Dr. Levy meant to say the same thing, and that his reference to “3-5 hrs per day,” Tr. 441, rather than “3-5 days per week,” was a scrivener’s error.
8 muscle spasm.”8 Tr. 1219. Dr. Ziada further opined that
Crandlemere could never perform the postural activities of
climbing, balancing, stooping, kneeling, crouching, and
crawling, and he supported his opinion by stating that “because
of back pain [Crandlemere] is limited to moving [and] he
requires meds, [and must be able to] change position
frequently.” Id. In addition, Dr. Ziada identified several
manipulative and environmental limitations. Finally, Dr. Ziada
opined that Crandlemere: (1) was “limited to jobs where he . .
. [would be] would be allowed to take unscheduled breaks to
relieve pain or discomfort,” Tr. 1221; (2) was not “capable of
gainful employment on a sustained basis,” id.; and (3) was
likely, on account of his condition, “to be absent from work
three or more times per month,” id.
Crandlemere first applied for DIB on July 29, 2009. His
quest for DIB has followed what can only be described as a long
and winding road. To begin, Crandlemere’s claim was denied at
the initial level, and then he received an unfavorable decision
8 Spondylosis is “[a]nkylosis of the vertebra, often applied nonspecifically to any lesion of the spine of a degenerative nature.” Stedman’s, supra note 3, at 1813. Ankylosis is “[s]tiffening or fixation of a joint as a result of a disease process, with fibrous or bony union across the joint; fusion.” Id. at 95. 9 from an Administrative Law Judge (“ALJ”). Crandlemere appealed
the ALJ’s decision to this court, which remanded. See
Crandlemere v. Astrue, No. 11-cv-529-SM, 2013 WL 160334 (D.N.H.
Jan. 15, 2013). In his remand order, Judge McAuliffe
identified, as reversible error, the ALJ’s reliance on Dr.
Nault’s opinion when the prediction in that opinion, i.e., that
Crandlemere would no longer be disabled as of June 3, 2010,
“appear[ed] to have been incorrect.” Id. at *4. As evidence of
the incorrectness of Dr. Nault’s prediction, Judge McAuliffe
pointed to the opinions contained in nine Comp Forms completed
by Drs. Levy and Tung between February 1, 2010, and January 14,
2011. Judge McAuliffe described Dr. Levy’s opinions this way:
By July of 2010, Dr. Levy concluded that claimant had recovered to the point that he was capable of lifting a maximum of 10 pounds occasionally and five pounds frequently, and could work a maximum of four to eight hours a day, three to five days a week. At best, then, Dr. Levy believed claimant was capable of performing the exertional requirements of sedentary work, on a less-than full-time basis. Dr. Levy repeated that opinion several times in the months that followed. But, he never concluded that claimant was capable of a return to full time work . . . .
Id. (emphasis in the original, citations to the record omitted).
While Crandlemere’s 2009 claim was working its way through
the review process, he filed a second claim, which was
consolidated with his first one, in a decision by the Appeals
10 Council (“AC”) that vacated the ALJ’s unfavorable decision on
Crandlemere’s second claim.
Crandlemere received a hearing before an ALJ on his
consolidated claim. At that hearing, a vocational expert (“VE”)
testified that a person with the RFC described in Dr. Ziada’s
Medical Source Statement would not be able to perform any jobs.
After the hearing, the ALJ issued an unfavorable decision. The
AC reversed and remanded.
On remand, Crandlemere received yet another ALJ hearing.
At that hearing, the ALJ asked the VE to consider “someone of
similar age, education, and vocational background who is limited
to sedentary work with a sit/stand option at will,” Tr. 717, and
completed the hypothetical by asking the VE to consider a person
who
[c]an occasionally perform all of the postural maneuvers. Occasionally means up to a third of the work day. Is limited to simple, unskilled work, and is able to maintaining attention and concentration for two-hour increments throughout an eight-hour work day and 40-hour work week.
Id. The VE testified that a person fitting the ALJ’s
hypothetical could perform the jobs of document preparer,
addresser, cutter and paster, stuffer, and eyeglass frame
polisher.
11 After the hearing, the ALJ issued a decision in which he
gave: (1) significant weight to the opinions in Dr. Nault’s
January 2010 RFC assessment; (2) significant weight to the
opinions in Dr. Levy’s Medical Source Statement, except for the
limitation to working “4-8 hours per day, 3-5 hours per [week],”
Tr. 674, to which the ALJ gave limited weight; (3) lesser weight
to the opinions in Dr. Ziada’s Medical Source Statement; (4)
some weight to the opinions in Dr. Cheng’s Progress Note; and
(5) limited weight to the opinions in the Comp Forms completed
by Drs. Cheng, Clark, and Levy. The ALJ did not specifically
mention the Comp Forms completed by Dr. Tung.
The ALJ’s decision also includes the following relevant
findings of fact and conclusions of law:
4. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar spine, a right knee meniscus tear, obesity, a learning disorder, and depression (20 CFR 404.1520(c)).
. . . .
6. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except he would need to be allowed a sit/stand option at will; he could occasionally climb, balance, stoop, kneel, crouch, and crawl; he is limited to simple-unskilled work; and he is able to maintain attention and concentration for two-hour increments throughout an eight-hour workday. 12 . . . .
11. Through the date last insured, considering the claimant’s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
Tr. 666, 668, 677. The ALJ concluded by finding that
Crandlemere was not disabled because he was capable of
performing the five jobs identified by the VE.
Claimant appealed the ALJ’s decision to the AC, but the AC
deemed the appeal untimely and declined to consider it. This
action followed.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, 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. 42 U.S.C. § 423(a)(1)(A)-(D). The only question
in this case is whether the ALJ correctly determined that
Crandlemere was not under a disability from June 3, 2009,
through September 30, 2011, that last date on which he was
insured for disability insurance benefits.
13 To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ a
five-step process. See 20 C.F.R. § 404.1520.
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.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in § 404.1520).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
must do so 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)). Finally,
14 [i]n assessing a disability claim, the [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. Crandlemere’s Claims
Crandlemere claims that the ALJ erred by: (1) making
several mistakes in evaluating the medical opinions on his
physical RFC; (2) failing to include a limitation to performing
at “below average pace” in his mental RFC; and (3) determining,
at step 5, that the jobs the VE identified existed in
significant numbers in the national economy, and relying on VE
testimony that was not consistent with the Dictionary of
Occupational Titles. Claimant’s first argument is persuasive,
and dispositive.
With respect to the ALJ’s evaluation of the medical
opinions, Crandlemere claims that the ALJ committed these
errors: (1) failing to give controlling weight to the opinions
in Dr. Ziada’s Medical Source Statement; (2) giving inadequate
reasons for giving significant weight to the opinions in Dr.
15 Nault’s RFC assessment; (3) erroneously crediting some of the
opinions in Dr. Levy’s Medical Source Statement but discounting
Dr. Levy’s limitation to working four to eight hours a day,
three to five days a week; (4) failing to evaluate the opinions
in the Comp Forms completed by Drs. Clark and Tung, and in
particular Dr. Tung’s recurrently stated opinion that he needed
to change positions frequently; and (5) failing to explain the
exclusion of one of the limitations identified in Dr. Cheng’s
Treatment Note, i.e., that he required a job that allowed a
“frequent change of position,” Tr. 336. Taken in combination,
the ALJ’s treatment of the opinions rendered by Drs. Ziada and
Nault warrants a remand.
The court begins with the ALJ’s evaluation of the opinions
in Dr. Ziada’s Medical Source Statement. Dr. Ziada was a
treating physician, and the ALJ acknowledged as much in his
decision. Under the applicable regulations, the opinion of a
treating source is entitled to controlling weight if it “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [a claimant’s] case record.” 20 C.F.R.
§ 404.1527(c)(2). When an ALJ does not give controlling weight
to the opinion of a treating source, he must still determine how
16 much weight to give that opinion by considering these factors:
(1) the length of the treatment relationship and the frequency
of examination; (2) the nature and extent of the treatment
relationship; (3) the supportability of the opinion; (4) the
consistency of the opinion with the record as a whole; (5) the
specialization of the source offering the opinion; and (6) any
other relevant factors. See § 404.1527(c)(2)-(6). After an ALJ
performs the analysis described above, “[i]n many cases, a
treating source’s opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the test
for controlling weight.” Hunt v. Colvin, No. 16-cv-159-LM, 2016
WL 7048698, at *7 (D.N.H. Dec. 5, 2016) (quoting Social Security
Ruling 96-2p, 1996 WL 374188, at *4 (S.S.A. July 2, 1996)).
Finally, an ALJ must give “good reasons in [his] decision for
the weight [he] give[s] [a claimant’s] treating source’s
opinion.” 20 C.F.R. § 404.1527(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). 17 Jenness v. Colvin, No. 15-cv-005-LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015).
The ALJ gave Dr. Ziada’s opinions “lesser weight,” Tr. 674,
and explained his evaluation of those opinions this way:
First, while I acknowledge that [Dr. Ziada] does have a treatment history with the claimant, he only specializes in internal medicine and thus lacks any particularized expertise in the claimant’s alleged physical impairments. Second, while he provided one of the most recent assessments of record, he provides very limited narrative support or citations to the record in support of his very restricted range of part-time work, but rather largely check-marks a standard form. This provides limited support for his substantial findings as described.
Tr. 674. There are several problems with the manner in which
the ALJ evaluated Dr. Ziada’s opinions.
First, while the ALJ’s decision to give Dr. Ziada’s
opinions lesser weight necessarily signals a decision not to
give them controlling weight, the ALJ never said so directly,
and did not frame his consideration of Dr. Ziada’s opinions in
terms of the controlling-weight analysis described in the
applicable regulations. But, to give the ALJ’s decision the
benefit of the doubt, the court will presume that he concluded
that Dr. Ziada’s opinions were not “supported by medically
acceptable clinical and laboratory diagnostic techniques,” 20
C.F.R. § 404.1527(c)(2), and, for that reason, saw no need to 18 reach the issue of consistency with the other evidence in the
record. However, the ALJ did not give good reasons for
concluding that Dr. Ziada’s opinions were not adequately
supported.
The ALJ criticizes Dr. Ziada’s opinion for lacking
narrative support, but Dr. Ziada did identify clinical findings
for his exertional limitations (“lumbar spondylosis with
radiculopathy [and] back pain with muscle spasm,” Tr. 1219), and
he offered a narrative explanation for his postural limitations
(“because of back pain he is limited to moving [and] he requires
meds, [and must be able to] change position frequently,” id.).
That is more support than was provided by Dr. Levy for opinions
to which the ALJ gave significant weight, see Tr. 438-41, 674,
and at least as much support as was provided by Dr. Nault for
opinions to which the ALJ also gave significant weight, see Tr.
327-34, 674.9 Beyond that, the day before Dr. Ziada gave his
9 The Acting Commissioner contends that “Dr. Nault provided a much more detailed explanation for his opinion (with citations to relevant evidence and objective data) than Dr. Ziada.” Resp’t’s Mot. to Affirm (doc. no. 13-1) 8. But the bulk of Dr. Nault’s narrative explanation is devoted to Crandlemere’s condition before his surgery. The only objective data relating to Crandlemere’s post-surgery condition is a reference to a lack of “neurological deficits and a negative straight leg raising,” Tr. 334, as of December 21, 2009, i.e., about a month after Crandlemere’s surgery.
19 opinion, he examined Crandlemere and made these findings:
“tender lower back L3-4 level / loss of lumbar lordosis10 / spasm
[of the] paraspinal muscles.” Tr. 1268. The ALJ does not even
mention Dr. Ziada’s examination in his discussion of Dr. Ziada’s
opinions and, necessarily, makes no argument that the manner in
which Dr. Ziada examined Crandlemere did not constitute a
“medically acceptable clinical . . . diagnostic technique[],” 20
C.F.R. § 404.1527(c)(2). In short, the ALJ’s characterization
of Dr. Ziada’s opinion as poorly supported is, itself, poorly
Equally problematic is the ALJ’s criticism of Dr. Ziada’s
opinion for having been expressed on a check-box form. To be
sure, there is authority for the proposition that an “ALJ may
‘permissibly reject[] . . . check-off reports that [do] not
contain any explanation of the bases of their conclusions.’”
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting
Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); citing
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001)). But
Dr. Ziada’s check-box form did include explanations, which the
ALJ largely ignored. Moreover, while “‘check-box’ forms that
10“Lumbar lordosis” is “the normal, anteriorly convex curvature of the lumbar segment of the vertebral column.” Stedman’s, supra note 3, at 1119. 20 require little or no explanation . . . are ‘weak evidence at
best’ in the disability context, and . . . are particularly so .
. . when compared to . . . more detailed accounts,” Hevner v.
Comm’r Soc. Sec., 675 F. App’x, 182, 184 (3d Cir. 2017) (citing
Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)), the
opinions to which the ALJ gave significant weight are no more
detailed than the opinions expressed on Dr. Ziada’s Medical
Source Statement. Finally, the fact that an opinion is
expressed on a check-box form “is not a proper basis for
rejecting [such] an opinion [when it is] supported by treatment
notes.” Esparza v. Colvin, 631 F. App’x 460, 462 (9th Cir.
2015) (citing Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
2014)). Here, the record includes a treatment note by Dr. Ziada
dated one day before he prepared his Medical Source Statement,
see Tr. 1267-70, and while that note seems to support Dr.
Ziada’s opinion, the ALJ said nothing about it. In sum, under
the circumstances of this case, the fact that Dr. Ziada’s
opinion is expressed on a check-box form is not a good reason
for discounting it.
Because the ALJ’s characterization of Dr. Ziada’s opinion
as unsupported is itself unsupportable, and because the ALJ did
not even address the second controlling-weight factor,
21 consistency with the other evidence of record, the court agrees
with claimant that the ALJ failed to give good reasons for
declining to give controlling weight to Dr. Ziada’s opinions.
However, even if the ALJ had given good reasons for
declining to give controlling weight to Dr. Ziada’s opinions, he
did not give good reasons for giving those opinions “lesser
weight.” As a preliminary matter, like the explanation for
discounting a treating source’s opinion at issue in Jenness, the
explanation offered by the ALJ in this case “suffers from a
general lack of specificity,” 2015 WL 9688392, at *7. That is,
rather than being tied to any of the specific opinions expressed
in Dr. Ziada’s Medical Source Statement, the ALJ’s explanations
are “generic criticisms seemingly directed to Dr. [Ziada’s]
statement as a whole.” Id. That flies in the face of the ALJ’s
obligation to “provide specific reasons for assigning weight to
a treating source’s opinion.” Id.
That said, the court turns to the ALJ’s consideration of
the six factors for weighing medical opinions. See 20 C.F.R. §
404.1527(c)(2)-(6). As the court has already explained, the
ALJ’s consideration of supportability, see § 404.1527(c)(3), is
fundamentally deficient. While the ALJ acknowledged Dr. Ziada’s
status as a treating source, he said nothing further about the
22 length of the treatment relationship, the frequency of
examination, or the nature and extent of the treatment
relationship. See § 404.1527(c)(2)(i)-(ii). Similarly, the ALJ
said nothing about the consistency of Dr. Ziada’s opinions with
the record as a whole, see § 404.1527(c)(4), nor did he identify
any relevant “other factor,” see § 404.1527(c)(6). Rather,
apart from a purported lack of supportability, the ALJ rested
his evaluation of Dr. Ziada’s opinion on the fact that Dr. Ziada
is an internist rather than an orthopedist, see § 404.1527
(c)(5).
The ALJ’s bare observation that Dr. Ziada is an internist
is not a good reason for discounting his opinions. As noted,
the ALJ said nothing about the nature of Dr. Ziada’s treatment
relationship with Crandlemere. However, the record demonstrates
that as far back as September of 2012, Dr. Ziada had been
prescribing pain medication for Crandlemere’s back condition,
and was concerned enough about that condition to refer him for
an orthopedic consultation with Dr. Clark. Dr. Clark, in turn,
diagnosed Crandlemere with right lumbar radiculitis and
completed a Comp Form in which he opined that Crandlemere had no
work capacity. The record also demonstrates that the day before
Dr. Ziada rendered the opinion at issue, he: (1) examined
23 Crandlemere and noted a tender lower back at the L3-4 level, a
loss of lumbar lordosis, and spasm of the paraspinal muscles;
(2) diagnosed Crandlemere with chronic back pain and lumbar
radiculopathy; (3) prescribed pain medication; and (4) ordered
an MRI to further explore Crandlemere’s lumbar radiculopathy.
In light of Dr. Ziada’s history of treating Crandlemere for his
back condition, the mere fact that he is an internist is not a
good reason to give his opinions “lesser weight.”
So, the ALJ failed to give good reasons for the weight he
gave to Dr. Ziada’s opinions. Moreover, there are significant
problems with the ALJ’s determination that Dr. Nault’s opinion
was entitled to significant weight.
Completed in January of 2010, about two months after
Crandlemere’s surgery, Dr. Nault’s RFC assessment did not
describe Crandlemere’s then-current level of functioning but,
rather, predicted his RFC as of June 3, 2010. To borrow a
phrase from Dr. Nault’s opinion, “it is reasonable to assume,”
Tr. 334, that his prediction of Crandlemere’s RFC four months
hence was based upon an assumption that his surgery had been
successful. But, in August of 2010, a treating physician began
describing Crandlemere’s November 2009 procedure as “failed back
surgery.” Tr. 451. Obviously, that undercuts the value of Dr.
24 Nault’s opinion as substantial evidence for the projected RFC he
assigned Crandlemere.
For his part, the ALJ did not characterize Dr. Nault’s
opinion as a January 2010 prediction of Crandlemere’s RFC in
June of 2010. To the contrary, he wrote of “the remote
assessment of State examiner Burton Nault, M.D., dated January
2010, which found that the claimant could perform a wide range
of light-exertional work with occasional postural activities.”
Tr. 674 (emphasis added). Dr. Nault “found” no such thing. He
found that Crandlemere was disabled, and predicted that his
disability would dissipate by June.11 After pointing out that
Dr. Nault “is an Agency physician familiar with the disability
program,” Tr. 674, the ALJ further explained his decision to
give significant weight to Dr. Nault’s opinions:
Second, while [Dr. Nault’s] opinion is fairly remote in time, and thus did not consider the recent evidence of record, this more recent evidence does not support a substantial erosion of the occupational base. Third, the residual functional capacity above does contain an additional allowance that the claimant be limited to sedentary, rather than light work, and that he be allowed a sit-stand option at will, which would adequately allow for his reported residual pain as
11As Judge McAuliffe explained more than four years ago, the ALJ who wrote the very first decision on Crandlemere’s claim made the same mistake, treating Dr. Nault’s opinion as an assessment of a then-current RFC rather than a prediction of a future RFC. See Crandlemere, 2013 WL 160334, at *4.
25 described above and is more consistent with the treating orthopedist above. For these reasons, I afford the assessment of Dr. Nault significant weight, yet further reduce the claimant to a range of sedentary work.
Tr. 674.
While the ALJ determined that “this more recent evidence
does not support a substantial erosion of the occupational
base,” he did not identify the “more recent evidence” to which
he was referring. The Acting Commissioner attempts to rectify
that omission by pointing to both medical data and opinion
evidence that, in her view, support the ALJ’s evaluation of Dr.
Nault’s prediction.12 However, it is well established that “the
court cannot affirm the ALJ’s decision based upon rationales
left unarticulated by the ALJ.” Jenness, 2015 WL 9688392, at *7
(citing High v. Astrue, No. 10-cv-69-JD, 2011 WL 941572, at *6
12Among other things, the Acting Commissioner relies on a set of radiology reports that post-date Dr. Nault’s RFC assessment, suggesting that findings such as “[n]o evidence of reherniation,” Tr. 411, validate Dr. Nault’s opinions. Claimant relies on those same radiology reports, suggesting that findings such as “enhancing scar tissue on the laminotomy site and around the left S1 nerve root,” Tr. 409, invalidate Dr. Nault’s opinions. Reading arguments by lawyers that rest upon their own interpretations of the very same radiology reports aptly illuminates the rationale for the rule against allowing ALJs to fashion RFCs by interpreting raw medical data. See Schwarz v. Berryhill, No. 16-cv-163-SM, 2017 WL 3736789, at *6 (D.N.H. Aug. 30, 2017) (citing Childers v. Colvin, No. 14-cv-270-JL, 2015 WL 4415129, at *2 (D.N.H. July 17, 2015)).
26 (D.N.H. Mar. 17, 2011)). Thus, the ALJ’s undeveloped reference
to “more recent evidence” is an insufficient basis for crediting
Dr. Nault’s prediction.13 Turning to the ALJ’s third reason for
giving significant weight to Dr. Nault’s opinion, whatever else
it may be, the ALJ’s decision to assign Crandlemere an RFC that
was more restrictive than Dr. Nault’s RFC can hardly be
considered a reason for giving Dr. Nault’s opinion significant
weight. Indeed, the only logical conclusion to be drawn from
the ALJ’s decision to assign Crandlemere a more restrictive RFC
than Dr. Nault did is that that ALJ found that Dr. Nault’s
opinion overstated Crandlemere’s RFC and, consequently,
discounted it rather than crediting it. In any event, the ALJ’s
deviation from the RFC expressed in Dr. Nault’s opinion is not
substantial evidence to support the ALJ’s assignment of
significant weight to that opinion.
13Moreover, at least some of the “more recent evidence” directly undercuts the validity of Dr. Nault’s prediction. A big part of the “objective data” that the Acting Commissioner touts as supporting Dr. Nault’s opinion is Crandlemere’s negative straight leg raising test on December 21, 2009. But, on April 27, 2010, Crandlemere was unable to perform a straight leg raise “due to extreme pain,” Tr. 369, and he had positive straight leg raising tests on August 30 and October 10, 2010, see Tr. 445, 455. So, to the extent that Dr. Nault’s prediction was premised upon a presumption of continued negative straight leg raising test results, his prediction is undercut rather than supported by the more recent evidence on that issue.
27 To summarize, the ALJ did not give good reasons for the
weight he gave to Dr. Ziada’s opinions, and his decision to
assign substantial weight to Dr. Nault’s opinions is not
supported by substantial evidence. Taken together, the ALJ’s
errors in evaluating those opinions warrant a remand.
IV. Conclusion
For the reasons described above, the Acting Commissioner’s
motion for an order affirming her decision14 is denied, and
Crandlemere’s motion to reverse that decision15 is granted to the
extent that the case is remanded to the Acting Commissioner for
further proceedings, pursuant to sentence four of 42 U.S.C. §
405(g). The clerk of the court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
_______________ ___________ Joseph Laplante United States District Judge
Dated: September 15, 2017
cc: Janine Gawryl, Esq. T. David Plourde, AUSA
14 Document no. 13.
15 Document no. 10. 28