UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Deborah May Coutu
v. Civil No. 17-cv-003-JL Opinion No. 2018 DNH 052 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Deborah Coutu moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits
(“DIB”) 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
resolution of conflicts in the evidence is for the [Acting
2 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 statement1 is part of the court’s record and will be
summarized here, rather than repeated in full.
In November of 2013, while Coutu was employed as a
supervisor by CVS Pharmacy, she suffered a stroke, and upon
admission to the hospital, she was also diagnosed with migraine
headaches and cardiovascular risk factors of diabetes and
hyperlipidemia. She was out of work from the date of her stroke
until some time in February of 2014. In September of 2015, John
1 Document no. 11 3 Ingalls of CVS wrote a letter in which he described Coutu’s
return to work:
I have worked with Ms. Coutu as her Manager at CVS prior to her stroke in November 2013 and after the stroke when she attempted to return to work on a full- time basis in her prior position as Supervisor. She was unable to perform her supervisory duties and was demoted to a part-time Cashier in an effort to continue her employment with the company in some capacity.
Unfortunately, memory problems, anxiousness, dizzy spells [requiring her to lie down] inability to complete tasks and deal with stressful situations necessitated her transfer to a lower volume store where she could not even maintain a part-time schedule of 15 hours per week. Presently, she is working a few hours, one day per week in a low volume drug store.
We have provided Ms. Coutu an opportunity to work despite her medical conditions. Unlike all other part-time cashiers, she is not required to rotate to various stores as staffing requirements demand. In my opinion, Ms. Coutu would not be able to adjust to a changing work setting whether it be the specific duties she is required to complete or a different store than the one she is used to.
Administrative Transcript (hereinafter “Tr.”) 250.
In December of 2013, approximately one month after her
stroke, Coutu applied to the Social Security Administration
(“SSA”) for disability insurance benefits. She claimed that she
was disabled as a result of her stroke, diabetes, arthritis, and
depression.
The SSA, in turn, referred Coutu to a psychologist for a
consultative examination in March of 2014. However, because the 4 resolution of this case does not hinge on the effects of Coutu’s
mental impairment, there is no need to describe in detail the
results of her psychological examination or the state-agency
psychological consultant’s assessment of her mental residual
functional capacity (“RFC”).2
In April of 2014, a non-examining state-agency physician,
Dr. Jonathan Jaffe, assessed Coutu’s physical RFC. He
determined that she could occasionally lift/carry 20 pounds,
frequently lift/carry 10 pounds, and push/pull the same amount
of weight that she could lift/carry. He also found that she
could both stand/walk and sit (with normal breaks) for about six
hours in an eight-hour workday. With regard to postural
activities, Dr. Jaffe found that Coutu could occasionally climb
ramps/stairs, balance, stoop, crouch, and crawl, but could never
climb ladders/ropes/scaffolds. He also found that Coutu had no
environmental limitations other than a need to avoid even
moderate exposure to hazards such as machinery and heights.
2 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). 5 Finally, Dr. Jaffe found that Coutu had no manipulative, visual,
or communicative limitations.
The month after her stroke, i.e., in December of 2013,
Coutu began treating with a neurologist, Dr. Khawaja Rahman. In
August of 2015, Dr. Rahman completed a Headaches Medical Source
Statement in which he indicated that Coutu suffered from
moderate migraine headaches that produced the following signs
and symptoms: nausea, mental confusion, inability to
concentrate, exhaustion, and increasing pain with activity.
With regard to Coutu’s capacity for work, Dr. Rahman opined that
she would need to take unscheduled breaks and lie down every
day, that she would be off task at least 25 percent of the time,
and that she was likely to be absent from work due to her
migraines about three days per month.
After the SSA denied Coutu’s application at the initial
level, she received a hearing before an Administrative Law Judge
(“ALJ”). At the hearing, the ALJ posed several hypothetical
questions to a vocational expert (“VE”). First, he asked the VE
what jobs could be performed by a person with the following
characteristics:
[A]ssume that we have a 63 year old [who was] then 61 year[s] old with a 12[th] grade education and the claimant’s work history, has the ability to lift 20 pounds occasionally, 10 pounds frequently, can stand or walk for six hours, sit for six hours, unlimited 6 use for hands and feet to operate controls to push and pull, should never climb ladders, scaffolds, or ropes. The remaining postural are already at occasional and she should avoid unprotected heights. And I would add to that that she [can] handle, understand, and remember and carry out one to three step instructions during the typical two hour periods of a normal eight hour work day and 40 hour work week. She may be slower than the average, but [can work] at an acceptable pace. And can tolerate occasional changes in routine or tasks.
Tr. 53. The VE testified that a person with those
characteristics could perform Coutu’s prior work as a cashier.
But, when the ALJ changed the hypothetical to cover a person who
“would [be] off task 25 percent of the day or more and would be
likely to miss three days per month,” id. at 54, the VE
testified that no work would be available to such a person.
After Coutu’s hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
of law:
2. The claimant has engaged in substantial gainful activity since November 21, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
. . . .
3. The claimant has the following severe impairments: osteoarthritis, diabetes mellitus, status post cerebrovascular accident, coagulation disorder, and affective disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically 7 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she should never climb ladders, ropes, [or] scaffolds, but can perform the remainder of the postural activities on an occasional basis. She should avoid exposure to unprotected heights. The claimant can understand, remember, and carry out 1-3 step instructions during typical two-hour periods of [an] eight-hour workday and 40-hour workweek. She may be slower than the average worker, but [can] still work at an acceptable pace. She can tolerate occasional changes in routine work tasks.
6. The claimant is capable of performing past relevant work as a cashier. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565).
Tr. 16, 17, 19-20, 27. According to the ALJ, Coutu was not
disabled, and thus not entitled to benefits, because she: (1)
had engaged in substantial gainful activity during the period
when she claimed to have been unable to work due to her
8 disability; and (2) was capable of performing her past work as a
cashier.
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 Coutu
was not under a disability from November 12, 2013, through
November 4, 2015.
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
9 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 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
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,
[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. Coutu’s Claims
Coutu claims that the ALJ erred by: (1) finding that after
her stroke, she never went for at least 12 months without
engaging in substantial gainful activity; (2) failing to
properly evaluate the medical-opinion evidence; and (3) failing
to properly assess the credibility of her statements about her
10 symptoms. Respondent argues that she need not address Coutu’s
first claim because even if the ALJ did err in determining that
Coutu was not entitled to DIB because she had engaged in
substantial gainful activity at a time when she claims to have
been disabled, he correctly determined that her RFC permitted
her to perform her past work as a cashier. The court does not
agree; this case must be remanded because the ALJ did not
properly evaluate the medical-opinion evidence, and the Acting
Commissioner effectively concedes that the ALJ erred at step 1.
Turning to the ALJ’s evaluation of the medical-opinion
evidence, the applicable regulations require ALJs to evaluate
all of the medical opinions that are presented to them. See 20
C.F.R. § 404.1527(c). Those regulations further establish that,
as a general rule, opinions from treating sources should be
given the greatest amount of weight,3 opinions from sources who
have examined but not treated a claimant should be given lesser
weight, and opinions from sources who have neither treated nor
examined a claimant should be given the least amount of weight.
See 20 C.F.R. § 404.1527(c)(1)-(2). That said, an “ALJ may give
3 Indeed, if a medical opinion from a treating source 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, [the SSA] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). 11 little weight to a treating source’s opinion if that opinion ‘is
inconsistent with other substantial evidence in the record,
including treatment notes and evaluations by examining and non-
examining physicians.’” Therrien v. Berryhill, No. 16-cv-185-
LM, 2017 WL 1423181, at *5 (D.N.H. Apr. 21, 2017) (quoting Glynn
v. Colvin, No. 16-CV-10145-LTS, 2017 WL 489680, at *2 (D. Mass.
Feb. 6, 2017)).
When weighing any medical opinion, an ALJ should consider:
(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 medical source who provided the opinion;
and (6) other factors. Finally, when explaining the amount of
weight that he gives to the opinion of a treating source, an ALJ
must “give good reasons.” 20 C.F.R. § 404.1527(c)(2).
Moreover,
[t]o meet the “good reasons” requirement, the ALJ’s reasons must be both specific, see Kenerson v. Astrue, 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. 12 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).
In his decision, the ALJ reported that Dr. Rahman, Coutu’s
treating neurologist, had opined that Coutu “would need to take
unscheduled breaks daily in order to lie down and would be of[f]
task 25% or more of the workday [and] would be absent about
three days per month.” Tr. 21-22. He continued:
I have considered this opinion and Dr. Rahman’s status as a treating provider, but find that this opinion is entitled to little weight overall as it is not well supported by or consistent with the evidence of record. Treatment notes, clinical examinations, and daily activities do not support the opinion that the claimant requires unscheduled breaks daily or that she would be off task 25% or more of the workday, as is further discussed below.
Tr. 22. Later on in his decision, the ALJ echoed his earlier
evaluation of Dr. Rahman’s opinion:
As noted above, I give little weight to the opinion of Dr. Rahman as his opinion is not well supported by or consistent with the evidence of record. Treatment notes do not show that the claimant’s condition have [sic] as limiting an effect on her functioning as he described. The most recent notes reflect that the claimant’s reported headaches, which were less intense to second visit [sic]; but in both visits the claimant
13 had normal neurological examination findings and normal vision examination findings.
Tr. 26.
Sandwiched between the two evaluations of Dr. Rahman’s
opinion in which the ALJ actually addressed some of the factors
identified in the regulations, there is this:
With regard to the claimant’s treating physician opinions, the undersigned finds that such are not entitled to controlling weight. The possibility always exists that a doctor may express an opinion in the effort to assist a patient with whom he or she sympathizes for one reason or another. Patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patients’ requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
Tr. 25.
While there are good reasons not to give controlling weight
to a treating source’s opinion, see Therrien, 2017 WL 1423181,
at *5, it would seem beyond cavil that a treating source’s
status as a treating source is not one of them. Moreover, it
can hardly be doubted that when the SSA adopted the rule that it
would “give more weight to medical opinions from [a claimant’s]
treating sources,” 20 C.F.R. § 404.1527(c)(2), those who drafted
and adopted the rule understood that treating physicians might
14 have sympathy for their patients, and that understanding is
necessarily “baked into” the rule.
While there is no need to belabor the point, this court has
already registered its discomfort with the kind of unsupported
speculation about treating-source sympathy to which the ALJ
gives free rein in his decision. See Meldrem v. Colvin, No. 16-
cv-156-JL, 2017 WL 2257337, at *3 n.9 (D.N.H. May 23, 2017)
(citing Halla v. Colvin, No. 15-cv-30021-KAR, 2016 WL 234802, at
*5 (D. Mass. Jan. 20, 2016); Gagnon v. Colvin, No. 1:15-cv-273-
DBH, 2016 WL 403063, at *4 (D. Me. Jan. 13, 2016)). And this
court is far from alone in finding such speculation to be
unpersuasive and decidedly unhelpful. See, e.g., Sunshine v.
Berryhill, No. 16-cv-446-LM, 2018 WL 582576, at *5 n.6 (D.N.H.
Jan. 29, 2018) (citing Hill v. Astrue, Civ. No. 12-30018-KPN,
2012 WL 5830707, at *4 (D. Mass. Nov. 15, 2012)); George v.
Colvin, Civ. No. 13-10810-TSH, 2016 WL 8710428, at *9 (D. Mass.
Sept. 30, 2016) (citing Gonzalez v. Astrue, Civ. No. 11-30201-
KPN, 2012 WL 2914453, at *3 (D. Mass. July 5, 2012); Rodriguez
v. Astrue, 694 F. Supp. 2d 36, 43 (D. Mass. 2010)). In short,
it is sufficient to say that the court is entirely unmoved by
15 the ALJ’s ad hominem suggestion of bias on the part of Coutu’s
treating sources.
Turning to the ALJ’s other reasons for discounting Dr.
Rahman’s opinions, they too fall short. To begin, they tend to
be fairly unspecific. For example, the ALJ says that Dr.
Rahman’s opinion is not supported by Coutu’s daily activities,
“as further discussed below,” Tr. 22, but his subsequent
discussion of Coutu’s daily activities is scant, at best, and
appears to be limited to Coutu’s report to one doctor that she
was walking three times per week for exercise, see Tr. 24, and
her report to another health-care provider that she was “staying
busy at home with decorating, reading, and visiting with
family,” id. What is missing from the ALJ’s “discussion” is any
indication of how Coutu’s ability to walk three times a week,
decorate her home, read, and visit with family undercuts or
contradicts Dr. Rahman’s opinion that she would need daily
unscheduled breaks to lie down, would be off task 25% or more of
the workday, and would be absent from work three days per month,
all as a result of her migraines. Moreover, there is no
evidence in the record that Coutu took walks, decorated her
home, read, or visited with her family without significant
interruptions from migraine symptoms or that she performed those
activities in a manner that came anywhere close to approximating 16 the demands of full-time employment. Thus, the ALJ’s
explanation straddles the line between being unspecific and
unsupported.
The ALJ’s determination that Dr. Rahman’s opinion is
unsupported by or inconsistent with his treatment records is
similarly infirm. While the ALJ noted that during Coutu’s two
most recent visits with Dr. Rahman, she “had normal neurological
examination findings and normal vision examination findings,”
Tr. 26, he does not explain how those findings undermine or
contradict Dr. Rahman’s opinion, nor does he say what kind of
neurological examination findings would be necessary to support
an opinion such as the one that Dr. Rahman gave. In addition,
the office notes from Coutu’s two most recent visits to Dr.
Rahman: (1) include reports of daily headaches associated with
dizziness; (2) show that at each visit, Dr. Rahman increased
Coutu’s dosage of amitriptyline,4 which he first prescribed for
her in December of 2013; and (3) indicate that on several
occasions, Coutu had gone to the emergency room for treatment of
headaches accompanied by dizziness. The foregoing information
from Dr. Rahman’s treatment notes, only some of which is
4 Amitriptyline hydrochloride is “[a] chemical compound of the tricyclic antidepressant class that can be used to treat some sleep disorders and neurogenic pain syndromes.” Stedman’s Medical Dictionary 63 (28th ed. 2006). 17 reported in the ALJ’s decision, does not seem unsupportive or
inconsistent with his opinion.
Finally, notwithstanding the ALJ’s blanket statement that
Dr. Rahman’s opinion “is not well supported by or consistent
with the evidence of record,” Tr., 22, 26, the ALJ says nothing
about one important piece of record evidence: John Ingalls’
letter describing Coutu’s attempt to return to work. In his
decision, the ALJ says: “I do recognize that the claimant has
decreased her hours at work, but I do not find that the medical
evidence of record supports a restriction to part-time work.”
Tr. 25. The ALJ’s statement makes it appear as if Coutu reduced
her hours at work, but her hearing testimony and the Ingalls
letter -– both of which are uncontroverted –- demonstrate that
it was CVS who reduced Coutu’s hours, and that it did so several
times because it determined that she was capable of neither
full-time work nor even 15 hours a week of part-time work.
The fact that CVS, rather than Coutu, reduced Coutu’s work
hours aligns this case with Armstrong v. Astrue, No. 10-cv-196-
SM, slip op. at 30-32 (D.N.H. Feb. 28, 2011) ECF No. 23, R. & R.
approved with modifications by ECF No. 26, in which the court
ordered a remand because the ALJ determined that the claimant
had the mental RFC to perform his past relevant work as a
grocery bagger, despite the fact that he had been fired from his 18 bagger job as a result of his inability to follow various work
rules due to a mental impairment. While this case might not be
on all fours with Armstrong, the ALJ’s failure even to mention
the Ingalls letter and his misidentification of the entity
responsible for reducing Coutu’s hours at CVS, in conjunction
with the lack of any meaningful analysis of record evidence that
purportedly contradicts Dr. Rahman’s opinion, precludes the
court from determining that the ALJ’s decision to discount Dr.
Rahman’s opinion is supported by substantial evidence. Given
the VE’s testimony that a person with the limitations expressed
in Dr. Rahman’s opinion would be incapable of any kind of work,
this case must be remanded.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision5 is denied, and Coutu’s motion to
reverse that decision6 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
5Document no. 13.
6Document no. 9. 19 the court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
__________________________ Joseph Laplante United States District Judge
Dated: March 13, 2018
cc: Karl E. Osterhout, Esq. Daniel W. McKenna, Esq. T. David Plourde, AUSA
20 21