UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Wayne H. Jenness
v. Civil No. 15-cv-005-LM Opinion No. 2015 DNH 167 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Wayne Jenness moves to
reverse the Acting Commissioner’s decision to deny his
application 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, 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) (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) (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
2 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) (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). 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, document no. 9. That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Jenness has a history of complaints about pain and numbness
in his left shoulder and arm as well as back pain. Jenness has
also been diagnosed with mental impairments including
3 depression,1 generalized anxiety disorder, panic disorder without
agoraphobia, and alcohol abuse in partial remission. The record
includes several opinions on Jenness’s mental residual
functional capacity (“RFC”).2
In early October of 2012, Jenness was seen by Dr. Cheryl
Bildner, who gave him a mental status examination and reviewed
various records including individual therapy notes. Dr. Bildner
diagnosed Jenness with depressive disorder and generalized
anxiety disorder, and gave a “rule out” diagnosis of alcohol
abuse.3 Based upon her examination, she offered the following
opinions on Jenness’s then current level of functioning:
Claimant is able to complete activities of daily living.
. . . .
Claimant is unable to sustain appropriate social interaction with others. He reports becoming verbally aggressive towards others and further reports losing his temper several times a week. He has worked alone for the
1 Jenness’s diagnoses for depression include depressive disorder, major depression, recurrent major depression, and “major depressive disorder, recurrent, mild.” Tr. 579.
2 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a) & 416.945(a).
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 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)).
4 past 20 years. He described how he was his “own boss” and had limited social interactions with others.
Claimant is able to understand and recall basic information. No gross deficits were observed in cognitive functioning.
Claimant is unable to sustain concentration and complete tasks in a timely manner. He has been unable to sustain employment and exhibits as well as describes a lack of focus and motivation.
Claimant is unable to manage stress common to a work place. He is unable to maintain a schedule. He is able to make basic decisions. He is unable to sustain appropriate social interaction.
Tr. 328. Dr. Bildner also offered this prognosis:
Claimant is currently engaged in treatment. Continuity of care is important. It is unclear if claimant is taking medications reliably and consistently. Return to work in the near future, on a consistent basis, is unlikely at this time.
Id.
Shortly after Dr. Bildner provided her opinions, a
nonexamining state-agency psychological consultant, Dr. Laura
Landerman, provided a mental RFC assessment of Jenness.
Generally speaking, Dr. Landerman gave weight to Dr. Bildner’s
opinion, with some exceptions. Substantively, Dr. Landerman
opined that Jenness had no limitations in either the realm of
understanding and memory or the realm of adaptation. She also
5 opined that Jenness had some limitations in the realm of
sustained concentration and persistence and the realm of social
interaction. With regard to sustained concentration and
persistence, Dr. Landerman indicated that Jenness had no
significant limitations in five areas and moderate limitations
in three areas. She also provided the following narrative
explanation:
[Jenness] is able to maintain a schedule [and attendance] with[in] customary tolerances[.] Dr. [Bildner] opines otherwise but her opinion is not fully supported by available [medical evidence of record] nor self reported activities which includes caretaking of wife on a daily regular basis.
[Jenness] is able to sustain concentration and [attention] for routine tasks for two [hour periods.] Dr. Bildner’s opinion that he is unable to do so is not fully supported in [the medical evidence of record] available[.]
[Jenness] is able to persist to routine tasks at an acceptable pace within the context of an 8 hour day and 40 hour week without excessive interruptions from psych symptoms[.] Dr. Bildner opines otherwise which is not fully supported in available [medical evidence of record.]
Tr. 72. While Dr. Landerman noted the lack of support for Dr.
Bildner’s opinion in the medical record, she did not identify
any support for her own opinion in the medical evidence of
record. Moreover, to discredit Dr. Bildner’s opinion on
Jenness’s ability to maintain a schedule, Dr. Landerman relied
upon Jenness’s self-reported caretaking activities, which
6 consisted of one or two hours per day of caring for his wife in
the home they shared. See Tr. 201. With regard to social
interaction, Dr. Landerman indicated that Jenness had no
significant limitations in three areas and moderate limitations
in two areas. She also provided the following narrative
explanation: “needs a semi-or socially-isolated work station and
a supervisor who [delivers] feedback in a manner which is not
overly harsh or critical of his performance.” Tr. 73.
In May of 2013, Dr. Lester Nicholson, Jenness’s treating
psychiatrist, completed a “Mental Impairment Medical Source
Statement” on Jenness. In the form he filled out, Dr. Nicholson
diagnosed Jenness with recurrent major depression, generalized
anxiety disorder, panic disorder without agoraphobia, and
alcohol abuse in partial remission. He also identified 10
different signs and symptoms of the disorders he diagnosed.
With regard to the mental abilities and aptitudes necessary
for unskilled work, Dr. Nicholson rated Jenness as “unlimited or
very good” in five areas and “limited but satisfactory” in three
other areas. He also opined that Jenness was “seriously limited
but not precluded” in the area of accepting instructions and
responding appropriately to criticism from supervisors and the
area of dealing with normal work stress. Tr. 543. Finally, Dr.
Nicholson opined that Jenness was “unable to meet competitive
7 standards” in six different abilities and aptitudes needed to do
unskilled work: maintaining attention for two hours at a time,
maintaining regular attendance and customary punctuality,
sustaining an ordinary routine without special supervision,
working in coordination with or proximity to others without
being unduly distracted, completing a normal workday and
workweek without interruptions from psychologically based
symptoms, and performing at a consistent pace without an
unreasonable number and length of rest periods. Tr. 542-43.
When asked to explain those limitations and “the
medical/clinical findings that support[ed] [his] assessment,”
Dr. Nicholson responded: “Patient report.” Tr. 544.
Finally, Dr. Nicholson opined that Jenness’s mental
impairments or treatment for those impairments would cause him
to be absent from work more than four days per month. Dr.
Nicholson gave this prognosis: “Fair given lack of response to
treatment thus far.” Tr. 541. At the time he gave his opinion,
Dr. Nicholson had been treating Jenness for approximately four
months, seeing him once every four to six weeks.
In a letter dated September 16, 2013, Dr. Nicholson
informed Jenness’s counsel that it was his “medical opinion that
[Jenness’s] limitations as assessed in the questionnaire sent to
[counsel] on 5/6/13 continue[d] to be appropriate and [were]
8 consistent with [his] observations of Mr. Jenness as an ongoing
patient.” Tr. 550. Between May 6 and September 16, Dr.
Nicholson saw Jenness on no fewer than four occasions, and
during three of those visits, Dr. Nicholson administered mental
status examinations.
After conducting a hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
of law:
3. The claimant has the following severe impairments: degenerative disc disease of the spine, depression, anxiety (panic disorder without agoraphobia) and alcohol abuse in early remission (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically 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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can only occasionally climb, balance, stoop, kneel, crouch or crawl. He is limited to the performance of simple, unskilled-type work. He is able to maintain attention and concentration for 2-hour increments throughout an 8-hour workday and 40-hour workweek. The claimant should avoid social interaction with the general public but can sustain brief and superficial social interaction with co-workers and supervisors.
9 . . . .
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
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. 21, 22, 25, 31, 32. Based upon his assessment of Jenness’s
residual functional capacity, and a hypothetical question posed
to a vocational expert (“VE”) that incorporated the RFC recited
above, the ALJ determined that Jenness was able to perform the
jobs of assembler of plastic hospital products, marker, and
automatic car-wash attendant.
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
10 case is whether Jenness was under a disability from July 12,
2012, through the date of the ALJ’s decision, November 22, 2013.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)
(setting out a similar definition of disability for determining
eligibility for SSI benefits). Moreover,
[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he [she] applied for work. . . .
42 U.S.C. § 423(d)(2)(A) (pertaining to DIB benefits); see also
42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for
determining eligibility for SSI benefits).
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) & 416.920 (SSI).
11 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).
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,
[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)).
12 B. Jenness’s Claims
Jenness claims that this case must be remanded because the
ALJ: (1) determined his physical RFC without the benefit of the
opinion of a medical expert; and (2) failed to give controlling
weight to the opinion of his treating psychiatrist, Dr.
Nicholson. Jenness’s second argument, while not entirely
correct, is sufficient to warrant remand.
Under the applicable Social Security regulations, if an ALJ
happens to
find that a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). Because Dr.
Nicholson’s opinion was not consistent with the opinion offered
by Dr. Landerman, the ALJ did not err by declining to give Dr.
Nicholson’s opinion controlling weight. But that is not the end
of the story.
When an ALJ declines to give controlling weight to the
opinion of a treating source, he or she must still determine the
amount of weight to give it. When doing so, an ALJ should
consider the following factors: (1) the length of the treatment
relationship and the frequency of examination; (2) the nature
13 and extent of the treatment relationship; (3) supportability;
(4) consistency with the record as a whole; (5) the medical
specialization of the person giving the opinion; and (6) other
factors which tend to support or contradict the opinion. See 20
C.F.R. §§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6). Here, after
weighing the medical opinions before him, the ALJ gave great
weight to the opinions of Dr. Landerman, and little weight to
the opinions of Drs. Nicholson and Bildner.
The Social Security regulations pertaining to the
assessment of medical opinions provide that
generally speaking, the greatest weight should be placed on opinions from treating sources, with less weight placed on opinions from medical sources who merely examine a claimant, and the least weight of all on opinions from medical sources who have neither treated nor examined a claimant.
McLaughlin v. Colvin, No. 14-cv-154-LM, 2015 WL 3549063, at *5
(D.N.H. June 8, 2015). However, “[w]hile generic deference is
reserved for treating source opinions, the regulations also
presuppose that nontreating, nonexamining sources may override
treating doctor opinions, provided there is support for the
result in the record.” Shaw v. Sec’y of Health & Human Servs.,
25 F.3d 1037 (unreported table decision), 1994 WL 251000, at *4
(1st Cir. 1994) (citations omitted); see also Berrios Lopez v.
Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir.
14 1991) (collecting cases in which opinions of treating physicians
have been permissibly discounted).
While it is for the ALJ to determine how much weight to
give the opinion of a treating source, the ALJ must “always give
good reasons in [his] notice of . . . decision for the weight
[he gives a claimant’s] treating source’s opinion.” 20 C.F.R.
§§ 404.1527(c)(2) & 416.927(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 F. App’x 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). Accordingly, the court turns
to the explanations the ALJ gave for according less weight to
the opinions of Dr. Nicholson than he accorded to the opinions
of Dr. Landerman.
In his decision, the ALJ explained that he gave little
weight to Dr. Nicholson’s opinions because they were: (1) based
largely upon Jenness’s subjective allegations; (2) substantially
15 different from Dr. Landerman’s opinions; (3) “provided on a
check-box-type form, which was offered merely for the purposes
of establishing disability,” Tr. 30; (4) inconsistent with Dr.
Nicholson’s treatment notes; and (5) inconsistent Jenness’
activities of daily living. While it is a close call, the court
concludes that the ALJ has not articulated an adequate rationale
for discounting Dr. Nicholson’s opinions.
The court begins with two overarching concerns. First, the
ALJ did not consider three of the six factors mentioned in 20
C.F.R. §§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6), i.e., those
pertaining to Dr. Nicholson’s area of specialization and the
length and nature of his treatment relationship with Jenness.
Second, the ALJ’s decision suffers from a general lack of
specificity. An AJL must provide specific reasons for assigning
weight to a treating source’s opinion because “‘specific
reasons’ . . . allow ‘subsequent reviewers [to know] . . . the
weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.’” Kenerson, 2011 WL
1981609, at *4 (quoting Social Security Ruling 96-2p, 1996 WL
374188, at *5 (1996)). “[W]here no such ‘specific reasons’ are
given, remand is appropriate if the failure renders meaningful
review impossible.” Id. at *4 (citing Lord v. Apfel, 114 F.
Supp. 2d 3, 14 (D.N.H. 2000)). Here, Dr. Nicholson’s Mental
16 Impairment Medical Source Statement included many different
opinions, including his conclusion that Jenness could not meet
competitive standards in six different abilities and aptitudes
needed to perform unskilled work. However, no more than two of
the ALJ’s five explanations are tied to a specific opinion
offered by Dr. Nicholson; the rest are generic criticisms
seemingly directed to Dr. Nicholson’s statement as a whole.
Beyond that, there are significant problems with most of the
ALJ’s individual explanations.
The ALJ “gave Dr. Nicholson’s opinions little weight
because they also appeared to be based largely on the claimant’s
subjective allegations, which, as I indicated above, I did not
find to be entirely credible.” Tr. 30. On its face, that is an
acceptable reason for discounting a treating source’s opinion.
See Haggblad v. Astrue, No. 11-cv-028-JL, 2011 WL 6056889, at
*12 (D.N.H. Nov. 17, 2011) (citations omitted), report and
recommendation adopted by 2011 WL 6057750 (D.N.H. Dec. 6, 2011).
But here, the ALJ noted Dr. Nicholson’s reliance upon Jenness’s
subjective reports without also noting that Dr. Nicholson
reaffirmed his opinions in his letter of September 16, 2013,
which he wrote after he had given Jenness several mental status
examinations. Nowhere in his discussion of Dr. Nicholson’s
opinions did the ALJ mention either the September 16 letter or
17 the mental status examinations that proceeded it. The Acting
Commissioner attempts to fill that gap in her memorandum of law,
arguing that the results of Jenness’s September 9 mental status
examination support the ALJ’s decision to discount Dr.
Nicholson’s opinion. However, the court cannot affirm the ALJ’s
decision based upon rationales left unarticulated by the ALJ.
See High v. Astrue, No. 10-cv-69-JD, 2011 WL 941572, at *6
(D.N.H. Mar. 17, 2011). And, in any event, the Acting
Commissioner does not explain how, precisely, the findings from
the mental status examination contradict Dr. Nicholson’s
opinions.
The ALJ “gave Dr. Nicholson’s opinion that the claimant was
suffering from moderate limitations in performing his activities
of daily living, and marked limitations in social functioning,
and with respect to maintaining concentration, persistence and
pace, little weight because these conclusions were so
drastically divergent from the opinion of Dr. Landerman as to
render them somewhat less reliable.” Tr. 30. That Dr.
Nicholson’s opinions differed from Dr. Landerman’s opinions
provides no logical basis for deeming Dr. Landerman’s opinions
more reliable than Dr. Nicholson’s opinions, especially where
Dr. Nicholson’s opinions were largely consistent with Dr.
18 Bildner’s opinions, making Dr. Landerman’s opinions the
outliers, not Dr. Nicholson’s.
The ALJ next criticizes Dr. Nicholson’s opinions for being
presented on a check-box form. But that criticism applies with
equal force to Dr. Landerman’s opinions, which are presented in
a similarly generic manner. The court also notes that the bulk
of the narrative in Dr. Landerman’s mental RFC assessment
consists of her attempt to discredit Dr. Bildner’s opinions.
Whether Dr. Landerman’s criticisms of Dr. Bildner’s opinions
constitute substantial evidence in support of Dr. Landerman’s
opinions is an interesting question the court need not address.
The ALJ also found Dr. Nicholson’s “opinion to be
inconsistent with treatment notes that reflected improved
symptoms with the claimant having engaged [in] consistent mental
health treatment, and the claimant abstaining from alcohol use.”
Tr. 30. There are two problems. First, Dr. Nicholson offered
opinions on multiple aspects of Jenness’s mental RFC, and the
ALJ does not indicate which of Dr. Nicholson’s opinions is
inconsistent with his treatment notes. Second, the ALJ does not
identify the treatment notes to which he is referring, which is
obviously an impediment to meaningful review. The Acting
Commissioner, however, suggests that the relevant treatment
19 notes are those generated by Jenness’s visits to Dr. Nicholson
on September 9 and October 7, 2013.
In his note on the September 9 visit, Dr. Nicholson
recorded the following history: “Pt is still depressed with no
improvement in motivation, concentration, or energy but anxiety
and sleep are a little better.” Tr. 577. That visit resulted
in an increase in Jenness’s dosage of nortriptyline.4 See Tr.
579. After the October 7 visit, Dr. Nicholson recorded the
following history: “Pt reports minimal improvement in depression
and anxiety on Nortriptyline 100 mg.” Tr. 581. However,
neither the ALJ nor the Acting Commissioner: (1) identifies any
specific opinion by Dr. Nicholson that is inconsistent with the
minimal improvement that resulted from the change in Jenness’s
medication; or (2) explains how that minimal improvement
contradicts Dr. Nicholson’s opinions that Jenness could not meet
competitive standards in six different abilities and aptitudes
needed to perform unskilled work.
Finally, the ALJ “found Dr. Nicholson’s opinion
inconsistent with the claimant’s somewhat robust activities, and
his diminished credibility given his limited work history and
the exaggerated nature of the subjective allegations contained
Nortriptyline is an antidepressant that is “also used to 4
treat panic disorder.” Dorland’s Illustrated Medical Encyclopedia 1291 (23rd ed. 2012).
20 in his function report.” Tr. 30. But, as noted, that
explanation does not indicate the specific opinion(s) to which
the ALJ was referring. Moreover, it does not indicate what
“robust activities,” in particular, were inconsistent with Dr.
Nicholson’s opinion(s).
As the court has noted, the adequacy of the ALJ’s
explanation for giving little weight to Dr. Nicholson’s opinions
is a close question. But, given the logical problems with some
of the ALJ’s explanations, and their significant lack of
specificity, the court concludes that the ALJ’s decision to
discount Dr. Nicholson’s opinions in favor of Dr. Landerman’s
opinions is not supported by substantial evidence. Accordingly,
this case must be remanded.
Because this case is being remanded because of the manner
in which the ALJ handled Dr. Nicholson’s opinions, the court
need not address Jenness’s first argument, concerning the ALJ’s
assessment of his physical RFC. However, given the lack of any
expert opinion on Jenness’s physical RFC in the record, and
given Jenness’s alleged difficulties in using his left arm, the
Acting Commissioner may wish to consider purchasing a
consultative examination, to ensure that the record contains
adequate evidence to support a proper determination of Jenness’s
physical RFC.
21 IV. Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 10, is
denied, and Jenness’s motion to reverse that decision, document
no. 7, 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.
__________________________ Landya McCafferty United States District Judge
August 27, 2015
cc: D. Lance Tillinghast, Esq. Terry L. Ollila, Esq.