Grenier v SSA

2017 DNH 163

• Court: District Court, D. New Hampshire
• Decided: August 25, 2017
• Docket: 16-cv-210-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Beth Ann Grenier

v. Case No. 16-cv-210-JL Opinion No. 2017 DNH 163 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to 42 U.S.C. § 405(g), Beth Grenier moves to

reverse the Acting Commissioner’s decision to deny her

applications for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act, 42 U.S.C. §

423, and for supplemental security income, or SSI, under Title

XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, the Acting Commissioner’s decision, as announced by the

Administrative Law Judge (“ALJ”) is reversed, and the Acting

Commissioner is directed to approve Grenier’s applications for

DIB and SSI.

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) (setting out the standard of review for DIB

decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

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

2 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

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. 10, is part of the court’s

record and will be summarized here, rather than repeated in

full.

On three occasions, Grenier has been found eligible for

state-supported mental-health services by New Hampshire’s

Medicaid program. As a result, she has received treatment for

3 depression, posttraumatic stress disorder (“PTSD”), panic

disorder, and borderline personality disorder. Each time that

Grenier was determined eligible for mental-health services, the

determination was supported by a form (“DOE form”) that was

prepared by a social worker who provided her with mental-health

treatment and was co-signed by a treating psychiatrist. In each

of her DOE forms, Grenier was assessed to have moderate

limitations in each of four functional abilities: (1) activities

of daily living; (2) interpersonal functioning; (3) adaptation

to change; and (4) concentration, task performance, and pace.

See Administrative Transcript (hereinafter “Tr.”) 306-06

(October 18, 2011), 513-14 (July 19, 2012), 943 (July 6, 2014).

According to the rating system employed by the Medicaid program,

a person with “moderate limitations” requires help, assistance,

intervention, and/or prompting to perform adequately in each of

the four functional areas addressed by the form. See Tr. 516-

19.

In January of 2013, Grenier was awarded Aid to the

Permanently and Totally Disabled by the New Hampshire Medicaid

program, based upon her mental impairments (PTSD, depression,

and panic attacks). That award was supported by a Psychiatric

Evaluation prepared by Dr. Michael Schneider which also employed

the Medicaid rating system. Dr. Schneider opined that Grenier

had moderate limitations in two of the four listed abilities and

4 had marked limitations in the other two. See Tr. 343

In July of 2012, Grenier applied for DIB and SSI, claiming

that she was unable to work as a result of depression, PTSD, and

suicidal thoughts. After her claim was denied at the initial

level, Grenier received a hearing before an ALJ, who determined

that she was not eligible for benefits. In his decision, the

ALJ gave substantial weight to an assessment of Grenier’s mental

residual functional capacity (“RFC”) 1 by Dr. William Jamieson, a

non-examining state-agency consultant who reviewed Grenier’s

medical records. After spelling out his specific opinions on

Grenier’s mental RFC, Dr. Jamieson offered the following

additional explanation for his RFC assessment:

Weight given to [medical evidence of record] on file, with increased weight to recent psych [consultative examination by Dr. Richard Root]. Claimant does have some limitations due to anxiety related [symptoms]. . . .

Despite [symptoms], in a simple job[] setting, with few social demands and reasonably supportive supervision, claimant is able to maintain persistence to task within acceptable tolerances, and to maintain schedules and attendance without unreasonable interruption. She does have limitations in stress tolerance, and is able to deal with only simple and routine changes in the work setting.

Tr. 86, 97.

1 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1519 & 416.919.

5 While the ALJ gave substantial weight to Dr. Jamieson’s

opinion, he effectively ignored the medical evidence from Dr.

Root to which Dr. Jamieson referred in his RFC assessment. That

medical evidence consists a Psychological Evaluation that Dr.

Root wrote after giving Grenier a consultative examination. 2 In

that evaluation, Dr. Root diagnosed Grenier with: chronic PTSD;

panic attacks with agoraphobia; alcohol dependence; depressive

disorder not otherwise specified; nicotine dependence; rule out

eating disorder; 3 rule out pain disorder with psychological and

medical factors; cocaine abuse in self-reported full remission;

and personality disorder traits of a depressed, narcissistic,

paranoid type. Based his examination, Dr. Root gave the

following opinions on Grenier’s then-current level of

functioning:

ACTIVITIES OF DAILY LIVING: . . . Ms. Grenier would be able to handle her personal hygiene, cook, pay bills and maintain her residence adequately. She will have more difficulty with shopping, secondary to her panic attacks. She likely could shop adequately with a friend going with her.

2 “A consultative examination is a physical or mental examination or test purchased for [a claimant] at [the Social Security Administration’s] request.” 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).

3 “‘Rule-out’ in a medical record means that the disorder is suspected but not confirmed — i.e., there is evidence that the criteria for a diagnosis may be met, but more information is needed in order to rule it out.” Byes v. Astrue, 687 F.3d 913, 916 n.3 (8th Cir. 2012) (citing United States v. Grape, 549 F.3d 591, 593 n.2 (3d Cir. 2008)). 6 SOCIAL FUNCTIONING: . . . Ms. Grenier is capable of social functioning within a structured, supportive setting, such as a one-on-one interview, as we completed or within a work setting where tasks are very clear and there is not significant emotional intensity, confusion or demands. In settings that are more emotionally charged, demanding or more inconsistent, she will have significant problems functioning.

UNDERSTANDING AND MEMORY: . . . [W]ithin a one-on-one supportive structured setting, Ms. Grenier has adequate skills and capabilities to understand and remember short and simple, as well as slightly complex [instructions], still has more difficulty with situations where the instructions are more complicated or there is more stress present.

CONCENTRATION AND TASK COMPLETION: . . . [W]ithin a structured supportive one-on-one setting, Ms. Grenie[r] is able to concentrate and compete tasks adequately. In tasks that are more demanding and emotionally, stressfully charged, she will have difficulties. Her capability of concentrating on tasks and completing tasks, likely would vary, based on her self-reports. When she is having panic attacks, she will have significantly more difficulty.

REACTION TO STRESS AND ADAPATION TO WORK-LIKE SITUATIONS: . . . Ms. Grenier is able to maintain attendance in a schedule and is able to interact appropriately with supportive supervisors. In a highly competitive, structured or fast paced stressful environment, she likely will have more difficulty with interacting appropriately with supervisors.

Tr. 338-39 (emphasis added).

At Grenier’s hearing, the ALJ posed questions to a

vocational expert (“VE”) that assumed a hypothetical worker with

Grenier’s education and work experience, and who

could do simple jobs with few social demands, and persist with[in] acceptable tolerances, maintain schedules and attendances without unreasonable

7 interruption, and can deal with only simple and routine changes in a work setting.

Tr. 69. According to the VE, a person with those limitations

could not do Grenier’s past work as a private cook, but could

perform three other jobs. Later in the hearing, claimant’s

counsel asked the VE what jobs would be available to someone

with Grenier’s education and work experience who had to work “in

a one-on-one structured and supportive setting.” Tr. 72. The

VE testified that such a person would be virtually unemployable.

Ultimately, the ALJ found that Grenier could perform the

three jobs identified by the VE and, as a result, he determined

that she was not disabled. Grenier appealed the ALJ’s decision

to this court. On appeal, Judge Barbadoro ruled that “[t]he ALJ

erred by failing to address Dr. Root’s opinion regarding a one-

on-one work setting limitation.” Grenier v. Colvin, No. 14-cv-

153-PB, 2015 WL 5095899, at *4 (D.N.H. July 2, 2015). Based on

that ruling, Judge Barbadoro remanded the matter.

On remand, the ALJ conducted a second hearing. Before the

hearing, Grenier submitted two new pieces of evidence, the July

2014 DOE form and a January 2016 mental RFC assessment by Dr.

Gwendolyn Barros, a treating psychiatrist who also co-signed

both the 2011 and 2014 DOE forms.

In her mental RFC assessment, Dr. Barros gave 20 specific

opinions covering four broad functional abilities: understanding

8 and memory, sustained concentration and persistence, social

interaction, and adaptation. Among other things, Dr. Barros

opined that Grenier was markedly limited in her ability to: (1)

complete a normal workday and workweek without interruptions

from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of

rest periods; (2) interact appropriately with the general

public; (3) get along with co-workers or peers without

distracting them or exhibiting behavioral extremes; and (4)

maintain socially appropriate behavior. According to the SSA’s

rating system, “markedly limited” is defined as a “[s]ubstantial

loss of ability [as a result of which a person] can sustain

performance only up to 1/3 of an 8-hour workday.” Tr. 992.

At Grenier’s second hearing, in 2016, her counsel elicited

testimony from the VE that a person who was off task for more

than 10 percent of the workday would be precluded from

employment. The VE also testified that all jobs would be

precluded for a person who “could only sustain performance for

up to one-third of the work day in the ability to interact

appropriately with the general public, and also could only

sustain performance for up to one-third of the work day in the

ability to get along with coworkers.” Tr. 602.

After the 2016 hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

9 of law:

2. The claimant has not engaged in substantial gainful activity since January 20, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can do simple jobs with few social demands, persist at tasks within reasonable tolerances, maintain schedules and attendance without unreasonable interruption, and deal with simple and routine changes in the work setting.

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 562, 566, 572. As he had in his previous decision, the ALJ

found that Grenier was able to perform the three jobs identified

by the VE and, consequently, he determined that she was not

disabled.

The ALJ’s RFC includes no limitation to working in a

structured supportive one-on-one setting. In explaining the

basis for his RFC, the ALJ stated that he gave substantial

weight to the opinions in Dr. Jamieson’s RFC assessment and gave

little weight to the opinions in: (1) Dr. Root’s Psychological

Evaluation; (2) the 2014 DOE form, which was completed by Alissa

10 Gallo and Dr. Barros; (3) Dr. Barros’s RFC assessment; and (4)

Dr. Schneider’s Psychological Evaluation.

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). To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets. 42 U.S.C. § 1382(a). The question in this

case is whether the ALJ correctly determined that Grenier was

not under a disability from January 20, 2013, thorough February

26, 2016.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See 20 C.F.R. §§

404.1520 (DIB) and 416.920 (SSI).

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

11 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).

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 [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. Grenier’s Claims

Grenier claims that the ALJ erred in determining her RFC by

mishandling the medical opinion evidence in at least three ways:

(1) basing his evaluation of the opinions in Dr. Barros’s 2016

RFC assessment on a misapprehension of the differences between

the rating systems used by the state Medicaid program and the

12 SSA; 4 (2) basing his evaluation of Dr. Root’s opinion on several

factual inaccuracies; and (3) giving substantial weight to Dr.

Jamieson’s opinion, which is not consistent with the record as a

whole. She also claims that the ALJ erred at step 5, by relying

upon VE testimony that was elicited in response to a

hypothetical question that incorporated the flawed RFC he

assigned her. The manner in which the ALJ handled Dr. Root’s

opinion merits the unusual remedy of reversal along with

instructions to the Acting Commissioner to approve Grenier’s

applications for benefits.

Judge Barbadoro remanded this matter because in the ALJ’s

first decision, he “fail[ed] to address Dr. Root’s opinion

regarding a one-on-one work setting limitation.” Grenier, 2015

WL 5095899, at *4. In his second decision, the ALJ did address

Dr. Root’s opinion and found it “unpersuasive and unsupported by

the record.” Tr. 570. He elaborated:

The opinion is not supported by any narrative within Dr. Root’s report. [Grenier] told Dr. Root that she could work if she had medical benefits for mental health treatment. It is not supported by the claimant’s work history as cook and self-employed jewelry maker [not support limitation to unskilled work]. Dr. Root noted that the claimant currently was working at a market/store 30 hours per week, and was using a computer. No prior work was in a 1-on-1 supportive work station. The claimant plays guitar and writes music [not support limitation to unskilled

4 Indeed, the state Medicaid program uses the term “moderate” to denote a more profound functional deficit than is denoted by that same term in the SSI rating system. 13 work] and spends fair amount of time on the Internet, writing music on computer 2.5-3 hours per day. In November 2014, she reported that she was going to work at Applebee’s, not a 1-on-1 supportive work station. She reported a strength of “good at helping other people.”

Id. (citations to the record omitted, brackets in the original).

In her motion to affirm the ALJ’s decision, respondent

points out that because Dr. Root was “not a ‘treating source,’”

his opinion was “not subject to the ‘treating source’ rule,

pursuant to which a medical opinion may be rejected only for

good reasons,” Smythe v. Astrue, No. 2:10-cv-521-GZS, 2011 WL

2580650, at *5 (D. Me. June 28, 2011) (citing 20 C.F.R. §§

404.1527(d)(2) & 416.927(d)(2)), R. & R. adopted by 2011 WL

2942733 (July 21, 2011). Still, the inapplicability of the

treating source rule to the opinion of an examining source

cannot be a license for an ALJ to give reasons for discounting

such opinions that are not supported by substantial evidence.

For example, in Ryder v. Colvin, in which Magistrate Judge Rich

cited Smythe, he rejected the claimant’s argument that an ALJ

had rejected the opinion of a consultative examiner “out of

hand,” but only after determining that the ALJ’s reasons for

discounting the examiner’s opinions were supported by the

record, see No. 1:15-cv-00509-GZS, 2016 WL 7048690, at *4 (D.

Me. Dec. 5, 2016), R. & R. adopted by 2017 WL 79943 (Jan. 9,

2017). Here, by contrast, the ALJ’s reasons for discounting Dr.

14 Root’s opinion are unsupported by the record.

The ALJ said that Dr. Root’s opinion was “not supported by

any narrative within Dr. Root’s report.” Tr. 570. But Dr. Root

did not present his opinions by means of a check-box form that

required further discussion; he presented his opinions in a

narrative format.

The ALJ said that Grenier “told Dr. Root that she could

work if she had medical benefits for mental health treatment.”

Tr. 570. What Grenier actually said was that “she would not be

able to work without [mental-health] services.” Tr. 334.

Moreover, the record shows that in January of 2013, about a

month after she saw Dr. Root, and while she was receiving

mental-health services, Grenier quit her job at a market because

she “was so stressed out, having major panic attacks.” Tr. 54.

In other words, even with mental-health services, Grenier felt

that she was unable to work. Thus, the statement to which the

ALJ refers does not contradict Dr. Root’s opinion that Grenier

requires a structured supportive one-on-one work setting.

The ALJ said that “Dr. Root noted that the claimant

currently was working at a market/store 30 hours per week, and

was using a computer.” Tr. 570. But Dr. Root also noted “that

the market accommodate[d] her panic attacks,” Tr. 334, which

supports, rather than contradicts, his opinion that Grenier

required a structured supportive one-on-one work setting. And

15 while the record supports the ALJ’s finding that Grenier “was

using a computer,” Tr. 570, the ALJ does not explain how

Grenier’s ability to use a computer contradicts Dr. Root’s

opinion.

The ALJ said that “[n]o prior work was in a 1-on-1

supportive work station.” Tr. 570. But, as the court has

noted, Grenier’s market job included accommodations for her

panic attacks. Moreover, her job as a cook was one in which she

“did all the cooking, grocery shopping and cleaning for a

private home,” Tr. 212, and her jewelry-making job involved

“making bracelets when [she] was in the truck with [her]

husband,” Tr. 51. Thus, at least three of Grenier’s previous

jobs involved either support or work that was performed with

very few other people around. Moreover, even if the record did

support the ALJ’s finding that none of Grenier’s prior work was

performed in a one-on-one setting, that would not contradict Dr.

Root’s opinion, in light of the record evidence that Grenier

felt compelled to leave a number of previous jobs because of

stress associated with working in a job setting in which she was

obligated to interact with other people.

The ALJ said that “[t]he claimant . . . spends [a] fair

amount of time on the Internet, writing music on [a] computer

2.5-3 hours per day.” Tr. 570. Leaving aside the ALJ’s failure

to explain how music-writing and Internet usage contradict Dr.

16 Root’s opinion, Grenier testified at her second hearing that she

went on the Internet “[m]aybe once a week,” Tr. 600. Thus, the

ALJ’s finding that Grenier spent several hours a day on the

Internet is not supported by substantial evidence.

The ALJ said that “[i]n November 2014, [Grenier] reported

that she was going to work at Applebee’s, not a 1-on-1

supportive work station.” Tr. 570. That may be, but earlier in

his decision, the ALJ found that Grenier had “not engaged in

substantial gainful activity since January 20, 2013,” Tr. 562,

so her stated intention to get a job at Applebee’s, which came

to nothing, does not contradict Dr. Root’s opinion that she

Finally, the ALJ said that Grenier “reported a strength of

‘good at helping other people.’” Tr. 570. In fact, two

Service/Treatment plans that appear to have been drafted by

Gallo include the following notation: “Client Strengths: Inner

strength, being a survivor, good at helping other people.” Tr.

949, 951. Even if the characterization of Grenier as being

“good at helping other people” is fairly attributed to Grenier

herself, rather than to Gallo, an ability to help other people

does not contradict Dr. Root’s opinion that Grenier requires a

structured supportive one-on-one work setting.

Based on the foregoing, the court concludes that the ALJ’s

reasons for discounting Dr. Root’s opinions are unsupported by

17 the record. As the court has explained, because Dr. Root was

not a treating source, the ALJ was not required to give good

reasons for discounting his opinion. If that were the standard,

the ALJ’s handling of Dr. Root’s opinion would plainly amount to

reversible error. See Martinage v. Berryhill, No. 16-cv-245-PB,

2017 WL 1968291, at *8 (D.N.H. Apr. 20, 2017) (describing the

“good reasons” requirement). But even if the ALJ was not

required to give good reasons for discounting Dr. Root’s

opinion, he was obligated to support the reasons he did give

with substantial evidence from the record, and his decision

fails to pass muster under even that lower standard. In light

of Judge Barbadoro’s previous remand for failure to address Dr.

Root’s opinion in the first instance, the ALJ’s failure to

identify substantial evidence to support the weight he assigned

to that opinion in his second decision requires at least a

remand. See, e.g., Durgin v. Berryhill, No. 16-cv-451-SM, 2017

WL 3432611, at *7 (D.N.H. July 24, 2017) (remanding “[b]ecause

none of the ALJ’s three reasons for discounting [a consultative

examiner’s] opinion [were] supported by substantial evidence”),

R. & R. adopted by 2017 WL 3431956 (Aug. 9, 2017); Hunter v.

Colvin, No. 15-cv-421-PB, 2016 WL 6496238, at *9 (D.N.H. Oct.

13, 2016) (same), R. & R. adopted by 2016 WL 6496219 (Nov. 2,

2016).

Beyond the lack of record support for the ALJ’s evaluation

18 of Dr. Root’s opinion, the ALJ’s evaluation of the relevant

opinions contains a fundamental inconsistency. Specifically:

(1) the ALJ gave substantial weight to Dr. Jamieson’s opinion,

see Tr. 570; (2) Dr. Jamieson gave “increased weight” to Dr.

Root’s opinion, and identified no aspect of that opinion that he

did not credit, including the limitation to a structured

supportive one-on-one work setting, see Tr. 86, 97; yet (3) the

ALJ says he gave little weight to Dr. Root’s opinion. Given Dr.

Jamieson’s endorsement of Dr. Root’s opinion, along with his own

limitation to work “in a simple job setting, with few social

demands and reasonably supportive supervision,” id. (emphasis

added), it is difficult to see how, as a logical matter, the

weight the ALJ gave to Dr. Jamieson’s opinion did not extend to

Dr. Root’s opinion, especially in light of the ALJ’s failure to

explain how he could credit Dr. Jamieson’s opinion without also

crediting Dr. Root’s opinion.

This case has much in common with Payne v. Colvin, No. 15-

cv-274-JD, 2016 WL 8674486 (D.N.H. May 20, 2016), R. & R.

adopted by 2016 WL 3351004 (June 15, 2016), which resulted in a

remand. In Payne, the ALJ gave great weight to the opinion of

an examining psychologist, but the ALJ did not include a

significant limitation from that opinion in the RFC he assigned

to the claimant. See id. at *6. Since there was no other

evidence in the record to support an RFC that did not include

19 the limitation at issue, the case was “remanded because the

ALJ’s RFC assessment [was] not supported by substantial

evidence.” Id. This case presents a two-fold embodiment of the

Payne scenario. The ALJ gave substantial weight to Dr.

Jamieson’s opinion, which gave substantial weight to Dr. Root’s

opinion, and each opinion included a significant limitation that

the ALJ did not include in his RFC, i.e., Dr. Jamieson’s

limitation to working in “reasonably supportive supervision,”

Tr. 86, 97, and Dr. Jamieson’s analogous limitation to working

“within a structured, supportive setting,” Tr. 338. Absent

another opinion that supports an RFC that does not include a

limitation to a structured supportive one-on-one work setting,

and neither the ALJ nor the Acting Commissioner has identified

such an opinion, the ALJ’s RFC assessment is not supported by

substantial evidence.

Under ordinary circumstances, the lack of substantial

evidence to support the ALJ’s weighing of Dr. Root’s opinion,

along with the Payne problem, would counsel in favor of remand.

However, “a remand for further proceedings is unnecessary if the

record is fully developed and it is clear from the record that

the ALJ would be required to award benefits.” Holohan v.

Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001) (citing

Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994);

Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Varney v.

20 Sec’y of HHS, 859 F.2d 1396, 1399 (9th Cir. 1988)). Rather, as

the court of appeals for this circuit has explained, “a judicial

award of benefits [is] proper where the proof of disability is

overwhelming or where the proof is very strong and there is no

contrary evidence.” Seavey, 276 F.3d at 11 (citing Mowery v.

Heckler, 771 F.2d 966, 973 (6th Cir. 1985)).

The circumstances of this case warrant application of the

principles articulated in Massanari and Seavey. First, there a

lack of substantial evidence to support either the ALJ’s

weighing of Dr. Root’s opinion or his omission of Dr. Root’s

limitation to a structured supportive one-on-one work setting

from Grenier’s RFC. Second, the court can find no evidence in

the record that would support an RFC that does not include Dr.

Root’s limitation. To the contrary, Dr. Root’s opinion that

Grenier requires a structured supportive one-on-one work setting

is consistent with all seven of the other opinions in the

record. These include: (1) the 2011 DOE form prepared by Leslie

Jones and Dr. Barros in which they opined that Grenier had

moderate limitations in all four functional abilities; 5 (2) the

2012 DOE form prepared by Jones and Dr. Marianne Marsh in which

they also opined that Grenier had moderate limitations in all

5 As the court has already pointed out, that is a degree of limitation that denotes a need for assistance to perform adequately in each of those areas. See Tr. 516-19. 21 four abilities; (3) the 2012 Psychiatric Evaluation by Dr.

Schneider in which he opined that Grenier had moderate

limitations in two of the four listed abilities and marked

limitations in the other two; (4) the 2012 in opinion which Dr.

Jamieson gave weight to Dr. Root’s opinion and expressly

identified Grenier’s need for “reasonably supportive

supervision,” Tr. 86, 97; (5) a 2013 RFC assessment by Dr.

Barros in which she opined Grenier had marked limitations in

eight different abilities, see Tr. 508-12; (6) the 2014 DOE form

prepared by Gallo and Dr. Barros in which they opined,

consistent with the two previous DOE forms, that Grenier had

moderate limitations in all four abilities; and (7) the 2016 RFC

assessment by Dr. Barros in which she determined that Grenier

had marked limitations in four different abilities.

Because there is no evidence to support an RFC that does

not include a limitation to a structured supportive one-on-one

work setting and there is overwhelming evidence in support of

such a limitation, and because the VE testified that such a

limitation would preclude all work, this is one of those very

rare cases in which the appropriate result is not a remand but a

reversal with instructions to award benefits. See Seavey, 276

F.3d at 11.

22 IV. Conclusion

For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 9, is

denied; Grenier’s motion to reverse that decision, document no.

8, is granted; and the Acting Commissioner is directed to

approve Grenier’s applications for DIB and SSI. The clerk of

the court shall enter judgment in accordance with this Order and

close the case.

SO ORDERED.

__________________________ Joseph N. Laplante United States District Judge

August 25, 2017

cc: Bennett B. Mortell, Esq. Terry L. Ollila, Esq.