McRedmond v. Berryhill, SSA

2017 DNH 242

• Court: District Court, D. New Hampshire
• Decided: November 21, 2017
• Docket: 17-cv-127-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sara McRedmond

v. Civil No. 17-cv-127-JD Opinion No. 2017 DNH 242 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Sara McRedmond seeks judicial review, pursuant to 42 U.S.C.

§ 405(g), of the decision of the Acting Commissioner of Social

Security, denying her application for disability insurance

benefits under Title II and supplemental security income

benefits under Title XVI of the Social Security Act. McRedmond

moves to reverse, contending that the Administrative Law Judge

(“ALJ”) failed to properly consider the opinion of Dr. Dinan and

erred in assessing her residual functional capacity. The Acting

Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016). Substantial evidence is “more than a mere

scintilla.” Richardson v. Peralles, 402 U.S. 389, 401 (1971).

When the record could support differing conclusions, the court

must uphold the ALJ’s findings “if a reasonable mind, reviewing

the evidence in the record as a whole, could accept it as

adequate to support his conclusion.” Irlanda Ortiz v. Sec’y of

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)

(internal quotation marks omitted).

Background

McRedmond is thirty-nine years old. She completed two

years of college and earned an Associate’s Degree in office

management. McRedmond previously worked as an office clerk and

a cleaner. In support of her applications for benefits,

McRedmond represented that her ability to work was impaired by

mental and physical limitations.

Jennifer Whitcher, LCMH, provided mental health counseling

to McRedmond. On January 17, 2012, Whitcher completed a form

titled “Psychological Capacities” for McRedmond. Whitcher

stated that McRedmond had been diagnosed with PTSD and a major

depressive disorder that was recurrent and moderate. Whitcher

2 indicated that McRedmond had no deficit and was not limited or

had only mild limitations in her abilities to do most

activities. She indicated moderate limitations in maintaining

attention, sustaining routine without supervision, and

performing at a consistent pace. No more severe limitations

were found. Whitcher, however, stated that McRedmond was not

capable of working.

On February 22, 2012, William Dinan, Ph.D., did a

consultative psychological examination of McRedmond. Dr. Dinan

observed mild signs of depression and moderate signs of anxiety.

He also found that McRedmond was alert and oriented, her memory

was adequate, but her concentration was inconsistent. Based on

McRedmond’s description of her history and activities, Dr. Dinan

found that McRedmond’s abilities to do a variety of activities

and to understand and remember instructions were unimpaired.

With respect to task persistence, however, Dr. Dinan found that

McRedmond would be highly variable. He found that her ability

to maintain attention and complete tasks was limited to basic

and familiar tasks and that her pace would be slow. He

diagnosed PTSD and a major depressive disorder that was

recurrent and mild.

Whitcher completed another “Psychological Capabilities”

form on July 9, 2012, and again noted McRedmond’s diagnoses of

PTSD and recurrent and moderate major depressive disorder. She

3 again found no limitations or only mild or moderate limitations

in McRedmond’s abilities to function but also stated that

McRedmond was not capable of working.

State agency physician, Dr. Louis Rosenthall, reviewed

McRedmond’s medical records on October 16, 2012, to evaluate her

physical abilities to function. Dr. Rosenthall found that

McRedmond could perform a full range of light work without any

limitations.

Rexford Burnette, Ph.D, did a psychological evaluation of

McRedmond on October 22, 2012. Dr. Burnette reviewed Dr.

Dinan’s report and examined McRedmond. Based on his

examination, he found that McRedmond was tearful and her mood

was labile but that she was alert and attentive, able to

concentrate and remain on track, and had intact memory. Based

on McRedmond’s reports, Dr. Burnette found that she had moderate

limitations in her ability to do daily activities, moderate loss

in the domain of social interactions, and would often have

functional loss in work related tasks. He diagnosed dysthymic

disorder, generalized anxiety, and chronic PTSD.

State agency psychologist Michael Schneider, Psy.D.,

reviewed McRedmond’s medical records on November 6, 2012, to

evaluate her mental abilities. Dr. Schneider found that

McRedmond had no limitations in understanding, memory,

concentration, and persistence; had moderate limitations in her

4 ability to interact appropriately with the public and her

ability to accept instructions and criticisms; and was not

significantly limited in her ability to get along with co-

workers and to maintain socially appropriate behavior. More

specifically, Dr. Schneider found that McRedmond retained the

functional capacity to remember and carry out instructions,

including complex instructions, for extended periods and to

maintain adequate attention and complete a normal work day. Dr.

Schneider limited her work function to an environment in which

she would be able to avoid the general public and her

supervisors would not be overly critical.

In 2013, McRedmond was treated by Dr. Steven Youngs for

pain in her left hip and leg. Dr. Youngs found that McRedmond

was depressed but showed no acute or apparent distress due to

pain and that her gait was normal. Dr. Youngs recommended that

McRedmond exercise and lose weight. McRedmond saw Dr. Luchi

Quinones in August of 2013 for back pain. After reviewing

McRedmond’s x-rays, Dr. Quinones advised McRedmond to exercise

and prescribed vitamin D, naproxen, and Elavil.

On January 6, 2014, Whitcher prepared a “Summary Note” in

which she repeated McRedmond’s reports about her prior work

experiences and her symptoms. On the mental status examination

report, Whitcher stated that McRedmond was well groomed and that

she had normal speech, responsive affect, full orientation, good

5 insight, and denied suicidal and homicidal thoughts, obsessions,

and compulsions. Whitcher also found that McRedmond was

anxious. Whitcher stated that McRedmond was not able to

maintain fulltime employment.

McRedmond saw Andrea Berry, D.O., in July and September of

2014. In July, Dr. Berry noted McRedmond’s complaints of

anxiety but found that she was in no apparent distress although

she was tearful. Dr. Berry found that McRedmond was fully

oriented and had normal functioning. In September, McRedmond

complained of fatigue and muscle pain, but Dr. Berry found she

was in no apparent distress.

McRedmond also saw Claire Scigliano, Psy.D., for

counseling. Dr. Scigliano prepared a document titled “Treating

Physician/Treatment Provider Opinion” on November 10, 2015. Her

last treatment session with McRedmond was in July of 2015, but

Dr. Scigliano stated that her assessment was also based on a

telephone conversation on November 10. Dr. Scigliano assessed

McRedmond’s ability to function in twenty-three functional

domains and found that McRedmond’s ability to function was

deficient and generally unsatisfactory. Dr. Scigliano also

found that McRedmond’s stress increased with certain tasks and

that she would not be able to handle even part-time work.

6 A hearing was held on November 12, 2015, before an ALJ.1

McRedmond was represented by a non-attorney representative. A

vocational expert also testified at the hearing.

McRedmond testified at the hearing that her ability to work

was limited by her chronic pain, anxiety, and PTSD. She

described a typical day that included driving her boyfriend

places, doing dishes and laundry, and taking the dog for a walk.

She said that on a bad day she would sleep or try to talk

herself into getting things done. In response to the ALJ’s

questions, the vocational expert testified that McRedmond could

do her prior jobs as a cleaner and office clerk, and in response

to McRedmond’s representative’s questions the vocational expert

testified that McRedmond could do her prior work as a cleaner

unless she required supportive supervision or would be absent

one day each week.

The ALJ found that McRedmond had severe impairments due to

obesity, PTSD, depression, endometriosis, and irritable bowel

syndrome. He found that those impairments and in combination

with other impairments did not meet or equal impairments listed

at 10 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found

1 McRedmond first applied for disability insurance benefits and supplemental security income in 2012. A hearing on McRedmond’s applications was held on January 8, 2014, which resulted in denial of her applications. In June of 2015, the Appeals Council remanded the case for further evaluation.

7 that McRedmond had the residual functional capacity to do light

work but limited her to work with only occasional contact with

the general public. Based on that assessment, the ALJ found

that McRedmond was able to do her past work and that she was not

disabled. The Appeals Council denied her request for review on

January 30, 2017, making the ALJ’s decision the final decision

of the Acting Commissioner.

Discussion

McRedmond moves to reverse the decision on the grounds that

the ALJ failed to properly consider the opinion of Dr. Dinan and

instead based his residual functional capacity assessment on his

own lay evaluation of the medical evidence. The Acting

Commissioner moves to affirm, arguing that the ALJ properly

considered the opinion evidence and properly assessed her

residual functional capacity.

A. Dr. Dinan’s Opinion

McRedmond contends that the ALJ erred in failing to address

the restriction in Dr. Dinan’s opinion that she was limited in

concentration and task completion. Specifically, Dr. Dinan

found that McRedmond’s “abilities to maintain concentration and

complete tasks are limited to beginning basic, familiar tasks,

and proceeding at a slow pace” and that her ability to tolerate

stress in a work environment required “basic familiar job tasks

8 completed at a slow pace with supportive supervision.”

McRedmond contends that the ALJ failed to include those

limitations or explain why he did not accept that part of Dr.

Dinan’s opinion.

An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record. 20

C.F.R. § 404.1527(b).2 “Medical opinions are statements from

acceptable medical sources that reflect judgments about the

nature and severity of [the claimant’s] impairment(s), including

[the claimant’s] symptoms, diagnosis and prognosis, what [the

claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” § 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source’s specialty, and other factors that support or detract

from the opinion. § 404.1527(c). An ALJ may rely on the

opinion of a state agency consultant as medical opinion

evidence. § 404.1527(e).

2 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).

9 The ALJ primarily relied on Dr. Schneider’s evaluation and

opinion in assessing McRedmond’s residual functional capacity.

Dr. Schneider reviewed Dr. Dinan’s opinions in making his own

assessment but did not acknowledge Dr. Dinan’s limitations to

familiar tasks and a slow pace because of impairment in

concentration. Instead, Dr. Schneider found that McRedmond was

able to understand, remember, and carry out even complex

instructions for extended periods without special supervision.

Dr. Schneider also found, however, that McRedmond would need to

work in an environment where the supervisor was not overly

critical.

The ALJ adopted Dr. Schneider’s assessments except for the

requirement of a supervisor who was not overly critical. To

address that limitation, the ALJ cited parts of Dr. Dinan’s

opinion to show that McRedmond would be able to handle

criticism. The ALJ apparently overlooked Dr. Dinan’s opinion

that McRedmond would need supportive supervision. The ALJ

further relied on the vocational expert’s testimony that a

requirement for a supervisor who was not overly critical was a

personality trait of the supervisor and not something that she

could consider for evaluating the ability to do a job.

The ALJ appears to have relied on results that would

support a lack of limitations, while overlooking or ignoring

10 results that would raise concerns.3 Although an ALJ is

authorized “to piece together the relevant medical facts from

the findings and opinions of multiple physicians,” Evangelista

v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir.

1987), he cannot ignore medical opinion evidence in the record,

Nguyen, 172 F.3d at 35. The ALJ’s failure to address the

limitations in concentration and pace, found by Dr. Dinan, and

his failure to adequately weigh the special supervision

requirements found by Dr. Dinan and Dr. Schneider undermine the

evidentiary bases for his decision, leaving it without the

support of substantial evidence.

B. Residual Functional Capacity

McRedmond also faults the ALJ for relying on Dr.

Schneider’s opinion, provided in November of 2012, because she

continued to receive treatment that resulted in additional

medical records during the intervening years before the ALJ’s

decision in February of 2016. She argues that the ALJ

impermissibly interpreted the raw medical data generated after

November of 2012 to decide that her functional capacity had not

McRedmond and the Acting Commissioner dispute the import of 3

Dr. Schneider’s review of Dr. Dinan’s opinion. McRedmond contends that Dr. Schneider’s review is not relevant, while the Acting Commissioner contends that the ALJ was entitled to rely entirely on Dr. Schneider’s opinion. It is concerning in this case that the ALJ and Dr. Schneider both appear to have missed Dr. Dinan’s limitations based on concentration and pace.

11 changed. The Acting Commissioner contends that the ALJ properly

addressed the evidence that post-dated the 2012 opinions.

A state agency reviewing consultant’s opinion cannot

provide substantial evidence to support an ALJ’s decision if the

opinion is based on a “significantly incomplete record.”

Alcantara v. Astrue, 257 Fed. Appx. 333, 334 (1st Cir. 2007);

Giandomenico v. Acting Comm’r, Social Security Admin., 2017 WL

5484657, at *4 (D.N.H. Nov. 15, 2017). A record is

significantly incomplete if it demonstrates a material change

for the worse in the claimant’s condition. Alcantara, 257 Fed.

Appx. at 334. An ALJ as a lay person is not qualified to

interpret raw medical data to assess its impact on functional

capacity unless the impact on the claimant’s ability to work

would be apparent to a lay person. Gordils v. Sec’y of Health &

Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).

The ALJ gave little weight to the opinions of McRedmond’s

counselor, Jennifer Whitcher, and her psychologist, Dr. Claire

Scigliano, that were provided after the 2012 state agency

opinions and explained his reasons for doing so. The ALJ

discussed medical evidence generated after 2012 and noted

comments that McRedmond had improved. Because the case will be

remanded for further proceedings, the court need not decide

whether the 2012 opinions were out of date, based on the later

medical records.

12 Conclusion

For the foregoing reasons, the claimant’s motion to reverse

and remand (document no. 7) is granted. The Acting

Commissioner’s motion to affirm (document no. 12) is denied.

The case is remanded for further proceedings under sentence

four of § 405(g). The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

November 21, 2017

cc: Terry L. Ollila, Esq. Robert J. Rabuck, Esq. D. Lance Tillinghast, Esq.