UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Giles
v. Case No. 17-cv-659-PB Opinion No. 2018 DNH 202 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Michael Giles 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. 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 of the Social
Security Administration (“SSA”).
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 . . . .
1 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)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 8, is part of the court’s
record and will be summarized here, not repeated in full.
When Giles applied for DIB, he was 56 years old. He had
last worked in November of 2012, when he was laid off from his
job as a buyer. He claims he became disabled in April of 2013
as a result off: (1) degenerative arthritis in his neck and
back; and (2) emphysema.
In April of 2015, Dr. Louis Rosenthall, a non-examining
state-agency consultant, reviewed Giles’s medical records and
assessed his physical residual functional capacity (“RFC”). 1 In
terms of exertional capacity, Dr. Rosenthall opined that Giles
1 “An applicant’s residual functional capacity ‘is the most [he or she] can still do despite [his or her] limitations.’” Purdy v. Berryhill, 887 F.3d 7, 10 n.2 (1st Cir. 2018) (quoting 20 C.F.R. § 416.945(a)(1), a regulation governing claims for supplemental security income that is worded identically to 20 C.F.R. § 404.1545(a), which governs claims for DIB) (brackets in the original).
2 could: (1) lift and/or carry 10 pounds frequently and 20 pounds
occasionally; (2) stand and/or walk, with normal breaks, for a
total of about six hours in an eight-hour work day; (3) sit,
with normal breaks, for about six hours in an eight-hour work
day; and (4) push and/or pull the same amount he could lift
and/or carry. In terms of postural limitations, Dr. Rosenthall
opined that Giles could frequently balance, stoop, kneel,
crouch, and crawl, but could only occasionally climb ramps,
stairs, ladders, ropes, or scaffolds. Finally, Dr. Rosenthall
opined that Giles had no manipulative, visual, communicative, or
environmental limitations.
In July of 2016, a treating physiatrist, Dr. Bruce Myers,
completed a Physical Impairment Medical Source Statement on
Giles. In terms of exertional capacity, Dr. Rosenthall opined
that Giles could: (1) walk one city block without rest or severe
pain; (2) sit for 30 minutes at a time before needing to get up;
(3) stand for 15 to 20 minutes at a time before needing to sit
down or walk around; (3) stand/walk for less than two hours in
an eight-hour work day; and (4) sit for about four hours in an
eight-hour work day. In addition, Dr. Myers opined that Giles
needed to: (1) walk around for 10 minutes every 30 minutes; (2)
change change positions at will from sitting, standing, or
walking; (3) take unscheduled breaks of five to ten minutes
each, three times a day; and (4) use a cane occasionally, but
3 not typically. Finally, Dr. Myers opined that: (1) for one to
two thirds of a typical work day, Giles’s “experience of pain or
other symptoms [would be] severe enough to interfere with
attention and concentration needed to perform even simple work
tasks,” Administrative Transcript (hereinafter “Tr.”) 438
(emphasis omitted); and (2) as a result of his impairments or
treatment for them, Giles would likely be absent from work more
than four days per month.
After the SSA denied Giles’s application, he received a
hearing before an Administrative Law Judge (“ALJ”). At the
hearing, the ALJ took testimony from a vocational expert (“VE”).
The VE testified that: (1) a person with the RFC recited in Dr.
Rosenthall’s opinion would be able to do Giles’s past work plus
three other jobs; and (2) a person with exertional and postural
limitations that were similar, but not identical, to those in
Dr. Myers’s opinion would not be able to do Giles’s past work,
but could do three other jobs. 2 The ALJ then asked the VE about
2 I suspect that the ALJ intended for his second hypothetical question to include the limitations that Dr. Myers indicted in his opinion, but: (1) Dr. Myers opined that Giles could stand/walk less than two hours total in an eight-hour work day, see Tr. 439 (emphasis added), while the ALJ’s second hypothetical question posited a person who “can stand and walk two hours per day,” Tr. 92 (emphasis added); and (2) Dr. Myers opined that Giles could sit for about four hours total in an eight-hour work day, see Tr. 439 (emphasis added), while the ALJ’s second hypothetical posited a person “who can . . . sit for six [hours per day],” Tr. 92 (emphasis added).
4 ordinary tolerances for absenteeism, and the VE testified that
the ordinary tolerance was eight hours per month. In addition,
in response to a question from Giles’s counsel, the VE testified
that none of the jobs he had previously identified could be
performed by a person who was off task up to one third of an
eight-hour work day because of pain or other symptoms.
After the hearing, the ALJ issued a decision in which she
found that Giles had an RFC that was largely consistent with the
RFC in the opinion provided by Dr. Rosenthall and that allowed
Giles to perform his past work as a materials manager, as a
purchasing manager, and as a buyer, as well as three other jobs.
In the section of her decision in which she explained how she
determined Giles’s RFC, the ALJ stated that she gave great
weight to Dr. Rosenthall’s opinion and little weight to Dr.
Myers’s opinion.
Based upon her finding that Giles had the RFC to perform
his past work, the ALJ determined that he was not disabled. In
the alternative, she also determined that Giles had the RFC to
perform three other jobs, i.e., order clerk, telephone operator,
and expediter.
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
5 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 Giles
was not under a disability from April 10, 2013, through November
2, 2016, which is the date of the ALJ’s decision.
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step sequential evaluation
process. See 20 C.F.R. § 404.1520.
The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.
Purdy v. Berryhill, 887 F.3d 7, 10 (1st Cir. 2018) (quoting
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).
At the first four steps in the sequential evaluation
process, the claimant bears both the burden of production and
6 the burden of proof. See Purdy, 887 F.3d at 9 (citing Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001)); see also Bowen
v. Yuckert, 482 U.S. 137, 146 (1987). He must prove he is
disabled 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)). 3 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. Giles’s Claims
Giles claims that the ALJ erred by giving little weight to
Dr. Myers’s opinions, erred by giving great weight to Dr.
Rosenthall’s opinions, and erred in evaluating the testimony he
gave concerning his symptoms and limitations. Giles’s first
argument is persuasive, and dispositive.
3 At step five, the burden of proof shifts to the Acting Commissioner, see Seavey, 276 F.3d at 5 (citing Arocho v. Sec’y of HHS, 670 F.2d 374, 375 (1st Cir. 1982)), but the Acting Commissioner’s step-five determination is not at issue here, so there is no need to describe the mechanics of step five.
7 Giles filed his application for DIB in October of 2014.
Under the SSA regulations governing applications filed before
March 27, 2017, the opinion of a treating medical source such as
Dr. Myers is entitled to controlling weight if it “is well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record.” 20
C.F.R. § 404.1527(c)(2). 4 But, no matter how much weight an ALJ
gives the medical opinion of a treating source, she is obligated
to “give good reasons in [her] decision for the weight [she]
give[s] [that] opinion.” Id. Moreover:
Giving “good reasons” means providing “specific reasons” that will allow “subsequent reviewers [to know] . . . the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” SSR 96–2P, 1996 WL 374188, at *5 (1996). Accordingly, where no such “specific reasons” are given, remand is appropriate if the failure renders meaningful review impossible. See Lord v. Apfel, 114 F. Supp. 2d 3, 14 (D.N.H. 2000). In Lord, the ALJ “did not address” the treating physician’s “evaluation of [the claimant’s] . . . functional limitations.” Id. On that record, the court could not “determine whether [the ALJ] . . . properly weighed that evidence in light of the applicable factors listed in the SSA regulations.” Id. Finding it “impossible to determine whether . . . [the medical opinion] evidence was considered and implicitly discredited or instead was simply overlooked,” the court remanded for further proceedings. Id. at 15.
4 Under the regulations that apply to applications filed after March 27, 2017, the SSA does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).
8 See also Smith v. Barnhart, Case No. Civ. 02–081–M, 2003 WL 1191401, at *7 (D.N.H. March 12, 2003) (remanding for further consideration where “the ALJ did not account for several of the limitations from which [claimant’s treating physician] . . . believes claimant suffers and failed to adequately explain the basis for his (implicit) decision not to give controlling weight to those medical opinions”).
Kenerson v. Astrue, No. 10-CV-161-SM, 2011 WL 1981609, at *4
(D.N.H. May 20, 2011) (footnote omitted). Substantively, a
“good reason” is one that “embod[ies] ‘a “rationale that could
be accepted by a reasonable mind,’” Sanford v. Berryhill, No.
17-cv-246-JL, 2018 4350251, at *7 (D.N.H. Sept. 12, 2018)
(quoting Stafford v. Berryhill, No. 17-cv-345-LM, 2018 WL
3029052, at *8 (D.N.H. June 18, 2018)).
Here, Dr. Myers provided two opinions that, if given
controlling weight, would compel a determination that Giles was
unable to work and, as a consequence, disabled. The first of
those opinions was that Giles would be distracted by pain or
other symptoms between one third and two thirds of a work day.
The ALJ gave a reason for discounting that opinion, explaining
that it was inconsistent with Dr. Myers’s finding that Giles
could tolerate moderate work stress. See Tr. 27. The second
opinion that, if accepted, would dictate a finding that Giles
could not work was Dr. Myers’s opinion that Giles would be
absent from work more than four days per month. With respect to
that opinion, the ALJ had this to say:
9 Although Dr. Myers opined the claimant would miss more than four days of work per a week [sic], Accordingly, I find that the totality of the Seacoast Physiatry medical record, as well as other medical records, is inconsistent with Dr. Myers’s opinion of the claimant’s maximal functional abilities and must give it little weight.
Tr. 27. In the sentences leading up to the sentence and a half
quoted above, the ALJ gave specific reasons for discounting
specific opinions on Giles’s capacities for attention and
concentration, sitting, and walking. But, obviously, the second
half of the sentence in which the ALJ attempted to explain her
reason for discounting Dr. Myers’s opinion on absenteeism fell
through the cracks. Consequently, she gave no reason at all for
discounting that opinion, much less a good reason. See
McCormick v. Berryhill, No. 16-cv-321-LM, 2017 WL 4220449, at *7
(D.N.H. Sept. 22, 2017) (“by giving no reasons at all [for
discounting a treating source’s opinion], he [the ALJ]
necessarily fell short of meeting the ‘good reasons’
requirement”).
Giles identifies the ALJ’s failure to address Dr. Myers’s
opinion on absenteeism as one of several errors the ALJ made
when weighing Dr. Myers’s opinions. 5 In response, the Acting
5 Giles also claims that: (1) the ALJ did not explain how an ability to tolerate moderate work stress was inconsistent with Dr. Myers’s opinion that Giles’s pain or other symptoms would frequently interfere with his attention and concentration; and (2) several of the ALJ’s factual findings were not supported by substantial evidence.
10 Commissioner cites Bailey v. Berryhill, No. 2:17-cv-00080-DBH,
2017 WL 6590546, at *7 (D. Me. Dec. 26, 2017), for the
proposition that the ALJ was not obligated to “mention each
limitation in Dr. Myers’ opinions,” Resp’t’s Mem. of Law (doc.
no. 8-1) 4. In Bailey, there were opinions from several
treating sources, and the court ruled that the ALJ did not need
to “detail the limitations assessed by each physician,” id. But
it does not appear that any of the limitations at issue in
Bailey was, like Dr. Myers’s absenteeism limitation in this
case, a single limitation that precluded all employment. Thus,
Bailey is not especially persuasive.
Moreover, judges in this district have routinely remanded
when an ALJ has failed to address a disabling limitation in a
treating source’s opinion such as the absenteeism limitation in
this case. See, e.g., McCormick, 2017 WL 4220449, at *6
(remanding where ALJ failed to mention treating source’s
“limitations on sitting, standing, and walking that, according
to the VE, would preclude any work”); Hunt v. Colvin, No. 16-cv-
159-LM, 2016 WL 7048698, at *8 (D.N.H. Dec. 5, 2016) (“[I]t is
not . . . clear that the ALJ actually addressed Dr. Nelson’s
opinion that claimant would be absent from work four or more
days per month. Given the ALJ’s obligation to evaluate all
medical opinions, and the VE’s testimony that absence from work
for more than three days per month would preclude any
11 employment, the ALJ’s apparent failure to address Dr. Nelson’s
opinion on that matter is a problem.”) (citations omitted);
Willey v. Colvin, No. 15-cv-368-JL, 2016 WL 1756628, at *5
(D.N.H. Apr. 7, 2016) (recommending remand where ALJ failed to
mention treating source’s “opinion that [claimant] needed to lie
down every two hours” which VE “identified . . . as precluding
[claimant] from performing any job”), R. & R. adopted by 2016 WL
1733444 (Apr. 29, 2016); see also Lavoie v. Colvin, No. 14-cv-
466-PB, 2015 WL 9462085, at *3-4 (D.N.H. Dec. 28, 2015)
(remanding where treating source “expressed a number of opinions
regarding [claimant’s] exertional and nonexertional limitations”
but ALJ “did not specifically address these various conclusions
. . . or otherwise explain why these findings were unsupported
by the record”); Jenness v. Colvin, No. 15-cv-005-LM, 2015 WL
9688392, at *7 (D.N.H. Aug. 27, 2015) (same). 6
To be sure, the ALJ’s failure to complete the sentence in
which she attempted to explain her decision to discount Dr.
Myers’s absenteeism opinion was most likely a clerical error.
And there may be good reasons to discount that opinion. But,
“it is well established that ‘the court cannot affirm the ALJ’s
6 It is perhaps worth noting that under the regulations that apply to applications filed after March 27, 2017, the SSA is “not required to articulate how [it] consider[s] each medical opinion . . . from one medical source individually.” 20 C.F.R. § 404.1520c(b)(1).
12 decision based upon rationales left unarticulated by the ALJ,’”
Crandlemere v. Berryhill, No. 15-cv-516-JL, 2017 WL 4083566, at
*9 (D.N.H. Sept. 15, 2017) (quoting Jenness, 2015 WL 9688392, at
*7; citing High v. Astrue, No. 10-cv-69-JD, 2011 WL 941572, at
*6 (D.N.H. Mar. 17, 2011)), and Giles is entitled to good
reasons for the ALJ’s decision to discount Dr. Myers’s opinion.
Accordingly, mere oversight or not, the ALJ’s failure to address
Dr. Myers’s absenteeism opinion, which precludes all work,
requires a remand.
Because the court is remanding for a proper evaluation of
Dr. Myers’s absenteeism opinion, there is no need to address the
rest of Giles’s claims. However, there is a plausible argument
to be made that the ALJ crossed the line separating good reasons
from those that do not meet that standard when she found that
Dr. Myers’s opinion on Giles’s pain-related limitation on
attention and concentration was inconsistent with his opinion
that Giles could tolerate moderate “work stress.” That argument
is plausible because the court has difficulty seeing a logical
connection between a person’s ability to tolerate the external
stress of a workplace and his capacity to maintain concentration
and focus when confronted with pain or other symptoms of a
physical impairment. The SSA may wish to address this issue on
remand.
13 IV. Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 8, is
denied, and Giles’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 consistent with this
order, 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.
/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge
October 9, 2018
cc: D. Lance Tillinghast, Esq. Robert J. Rabuck, Esq.