UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lisandro Muniz
v. Civil No. 16-cv-303-LM Opinion No. 2017 DNH 195 Nancy A. Berryhill, Acting Commissioner of Social Security1
O R D E R
Lisandro Muniz seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
disability insurance benefits under Title II of the Social
Security Act. Because the Administrative Law Judge (“ALJ”)
failed to properly consider opinion evidence and improperly
relied on his own interpretation of the medical record, the
court remands the case to the Social Security Administration.
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
1 The complaint names as defendant “U.S., Social Security Administration, Commissioner.” After plaintiff filed her complaint, Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin, and Berryhill is automatically substituted as the defendant. See Fed. R. Civ. P. 25(d). 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).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520.
The claimant bears the burden through the first four steps of
proving that her impairments preclude her from working.2 Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
step, the Acting Commissioner has the burden of showing that
jobs exist which the claimant can do. Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
Background
Muniz filed an application for social security benefits,
alleging disability beginning in July 2010 because of back pain,
hepatitis C, depression, anxiety, insomnia, acid reflux, GERD,
sciatica, and thyroid problems. A hearing was held before ALJ
2 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and hia ability to do past relevant work. 20 C.F.R. § 404.1520(a).
2 Thomas Merrill in September 2012. In a decision issued later
that month, the ALJ found at Step Two of the sequential analysis
that Muniz did not have a severe impairment and, therefore, was
not disabled.
The Appeals Council directed the ALJ to reconsider evidence
of whether Muniz had a severe impairment at Step Two. In
response, a second hearing was held before ALJ Merrill. The ALJ
again found at Step Two that Muniz did not have a severe
impairment and was not disabled. This time, the Appeals Council
denied review.
The medical records begin in February 2010 when Muniz was
diagnosed with hepatitis, and was also examined and treated for
back pain. In July 2010, Muniz was also treated for depression,
and medical records show that he was taking Methadone at the
time, but taking more than he was prescribed. Muniz continued
to seek treatment for depression throughout 2010.
An MRI done in July 2010 showed disc bulge that was
greatest at L5-S1 with mild to moderate narrowing of the left
neural foramen but without compression of the nerve root. After
the MRI, Muniz began treatment with the Orthopedic Professional
Association clinic, and Dr. Anthony Salerni recommended epidural
steroid injections and physical therapy. In August, Muniz began
treatment at the Interventional Spine Medicine clinic with Dr.
Slezak for low back pain. Dr. Slezak administered steroid
3 injections, but the clinic discontinued Muniz’s treatment in
early 2011.
In March 2011, Muniz sought care for back pain at the
PainCare clinic. Nurse Greg Aprilliano at the PainCare clinic
noted that Muniz reported taking 10 100 milligram tablets of
Methadone each day and also noted that Muniz’s complaints of
pain exceeded the reported pathology in his back. Muniz’s
doctors recommended that he wean from Methadone. The PainCare
clinic stopped prescribing pain medications and subsequently
cancelled Muniz’s treatment because he tried to “double dip” on
his prescription.
In June 2011, a state medical consultant, Dr. MacEachran,
completed a physical residual functional capacity assessment of
Muniz. He found that Muniz was limited to lifting no more than
10 pounds occasionally, standing and walking for no more than
two to three hours in a day, sitting for no more than six hours,
and only occasional postural activities. A psychological
evaluation of Muniz found that he had no severe mental health
impairments.
Beginning in May 2012, Muniz received treatment for ongoing
depression and anxiety at Genesis Behavioral Health. In June
2012, Muniz began primary care treatment with Dr. Kelly
Seichepine, complaining of back pain. Dr. Seichepine noted that
Muniz was having trouble taking medication as prescribed.
4 In September 2012, Dr. Seichepine completed a physical
medical source statement, based on her treatment of Muniz since
June 2011 and the MRI done in 2010. Dr. Seichepine found that
Muniz could lift 10 pounds occasionally, could reach for only 20
percent of the day, could not stay on task for more than 75
percent of the day, could sit for no more than an hour, could
stand for 30 minutes, would need unscheduled breaks, and would
be absent at least four days each month.
Also in September 2012, Helena Greaney, APRN, completed a
psychiatric assessment of Muniz for purposes of benefits under
Financial Assistance for Needy Families. Greaney found that
Muniz was incapacitated by mental health problems.
Muniz continued mental health therapy and also continued
treatment with Dr. Seichepine in 2013. Dr. Seichepine ordered a
new MRI in June 2013. A lumbar MRI was done in July 2013. The
radiologist noted that the MRI showed annual bulging of the disc
extending into the left side with moderate forminal stenosis and
crowding of the L5 nerve root. He also noted degenerative disc
disease at L2-3 with disc extrusion.
In September 2013, Muniz saw Dr. Tanya Vanderlinde at
Concord Hospital for back pain, and saw Dr. Adam Cugalj at the
New Hampshire Institute for back pain in October. Dr. Cugalj
diagnosed bilateral L5 radiculitis with bilateral L5-S1
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lisandro Muniz
v. Civil No. 16-cv-303-LM Opinion No. 2017 DNH 195 Nancy A. Berryhill, Acting Commissioner of Social Security1
O R D E R
Lisandro Muniz seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
disability insurance benefits under Title II of the Social
Security Act. Because the Administrative Law Judge (“ALJ”)
failed to properly consider opinion evidence and improperly
relied on his own interpretation of the medical record, the
court remands the case to the Social Security Administration.
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
1 The complaint names as defendant “U.S., Social Security Administration, Commissioner.” After plaintiff filed her complaint, Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin, and Berryhill is automatically substituted as the defendant. See Fed. R. Civ. P. 25(d). 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).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520.
The claimant bears the burden through the first four steps of
proving that her impairments preclude her from working.2 Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
step, the Acting Commissioner has the burden of showing that
jobs exist which the claimant can do. Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
Background
Muniz filed an application for social security benefits,
alleging disability beginning in July 2010 because of back pain,
hepatitis C, depression, anxiety, insomnia, acid reflux, GERD,
sciatica, and thyroid problems. A hearing was held before ALJ
2 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and hia ability to do past relevant work. 20 C.F.R. § 404.1520(a).
2 Thomas Merrill in September 2012. In a decision issued later
that month, the ALJ found at Step Two of the sequential analysis
that Muniz did not have a severe impairment and, therefore, was
not disabled.
The Appeals Council directed the ALJ to reconsider evidence
of whether Muniz had a severe impairment at Step Two. In
response, a second hearing was held before ALJ Merrill. The ALJ
again found at Step Two that Muniz did not have a severe
impairment and was not disabled. This time, the Appeals Council
denied review.
The medical records begin in February 2010 when Muniz was
diagnosed with hepatitis, and was also examined and treated for
back pain. In July 2010, Muniz was also treated for depression,
and medical records show that he was taking Methadone at the
time, but taking more than he was prescribed. Muniz continued
to seek treatment for depression throughout 2010.
An MRI done in July 2010 showed disc bulge that was
greatest at L5-S1 with mild to moderate narrowing of the left
neural foramen but without compression of the nerve root. After
the MRI, Muniz began treatment with the Orthopedic Professional
Association clinic, and Dr. Anthony Salerni recommended epidural
steroid injections and physical therapy. In August, Muniz began
treatment at the Interventional Spine Medicine clinic with Dr.
Slezak for low back pain. Dr. Slezak administered steroid
3 injections, but the clinic discontinued Muniz’s treatment in
early 2011.
In March 2011, Muniz sought care for back pain at the
PainCare clinic. Nurse Greg Aprilliano at the PainCare clinic
noted that Muniz reported taking 10 100 milligram tablets of
Methadone each day and also noted that Muniz’s complaints of
pain exceeded the reported pathology in his back. Muniz’s
doctors recommended that he wean from Methadone. The PainCare
clinic stopped prescribing pain medications and subsequently
cancelled Muniz’s treatment because he tried to “double dip” on
his prescription.
In June 2011, a state medical consultant, Dr. MacEachran,
completed a physical residual functional capacity assessment of
Muniz. He found that Muniz was limited to lifting no more than
10 pounds occasionally, standing and walking for no more than
two to three hours in a day, sitting for no more than six hours,
and only occasional postural activities. A psychological
evaluation of Muniz found that he had no severe mental health
impairments.
Beginning in May 2012, Muniz received treatment for ongoing
depression and anxiety at Genesis Behavioral Health. In June
2012, Muniz began primary care treatment with Dr. Kelly
Seichepine, complaining of back pain. Dr. Seichepine noted that
Muniz was having trouble taking medication as prescribed.
4 In September 2012, Dr. Seichepine completed a physical
medical source statement, based on her treatment of Muniz since
June 2011 and the MRI done in 2010. Dr. Seichepine found that
Muniz could lift 10 pounds occasionally, could reach for only 20
percent of the day, could not stay on task for more than 75
percent of the day, could sit for no more than an hour, could
stand for 30 minutes, would need unscheduled breaks, and would
be absent at least four days each month.
Also in September 2012, Helena Greaney, APRN, completed a
psychiatric assessment of Muniz for purposes of benefits under
Financial Assistance for Needy Families. Greaney found that
Muniz was incapacitated by mental health problems.
Muniz continued mental health therapy and also continued
treatment with Dr. Seichepine in 2013. Dr. Seichepine ordered a
new MRI in June 2013. A lumbar MRI was done in July 2013. The
radiologist noted that the MRI showed annual bulging of the disc
extending into the left side with moderate forminal stenosis and
crowding of the L5 nerve root. He also noted degenerative disc
disease at L2-3 with disc extrusion.
In September 2013, Muniz saw Dr. Tanya Vanderlinde at
Concord Hospital for back pain, and saw Dr. Adam Cugalj at the
New Hampshire Institute for back pain in October. Dr. Cugalj
diagnosed bilateral L5 radiculitis with bilateral L5-S1
5 foraminal stenosis. He provided manipulative therapy and a
steroid injection.
Muniz continued treatment with Dr. Seichepine in 2014 and
had increased back pain. A lumbar x-ray showed slight interval
progression of degenerative disc disease. Muniz also continued
treatment for depression in 2014.
Discussion
Muniz contends that the ALJ’s decision must be reversed
because the ALJ failed to consider the opinions provided by Dr.
Seichepine and APRN Greaney, improperly relied on his own
interpretation of the medical evidence in finding no severe
impairment at Step Two, and failed to evaluate properly Muniz’s
impairments. Muniz also contends that substantial evidence
supports a finding that he has severe mental health impairments.
The Acting Commissioner argues that the ALJ’s failure to
discuss the opinions of Dr. Seichepine and APRN Greaney is
harmless, that the ALJ’s failure to adopt Dr. MacEachern’s
opinion is harmless, and that the ALJ made an appropriate common
sense evaluation of Muniz’s limitations. The Acting
Commissioner also argues that the ALJ was not obligated to
discuss all factors for the Step Two finding, and that the ALJ
properly considered the mental health evidence.
6 The Acting Commissioner emphasizes the impact of what she
interprets as Muniz’s drug-seeking behavior on the opinions
provided in the record. For example, the Acting Commissioner
contends that Dr. Seichepine’s opinion is of little value
because Dr. Seichepine was not aware of that behavior when she
wrote her evaluation in June 2012. Similarly, the Acting
Commissioner argues that substantial evidence supports the ALJ’s
Step Two determination because the record supports the
conclusion that Muniz’s drug-seeking behavior played a
significant role in his reported symptoms.
The Acting Commissioner, however, acknowledges that the
ALJ did not discuss Dr. Seichepine’s or APRN Greaney’s opinions
or weigh those opinions based on the issues the Acting
Commissioner now raises. The Acting Commissioner also
acknowledges that the ALJ rejected Dr. MacEachern’s opinion that
Muniz was limited in his functional capacity because of back
pain, noting in conclusory fashion that the record does not
support that opinion. As a result, the ALJ relied on his own
assessment of the record evidence, without any medical opinion.
The Acting Commissioner contends that the ALJ’s analysis was
acceptable in this case. The court disagrees.
An ALJ is “not at liberty to ignore medical evidence or
substitute his own views for uncontroverted medical opinion.”
Nguyen, 172 F.3d at 35. Under the social security regulations
7 the ALJ must evaluate “every medical opinion” that a claimant
submits, “[r]egardless of its source.” 20 C.F.R. § 404.1527(c).
Accordingly, an ALJ “must explain in the decision the weight given
to . . . any opinions from treating sources, nontreating sources,
and other nonexamining sources . . . .” § 404.1527(e)(2)(ii).
Ordinarily, therefore, an ALJ's failure to consider a medical
opinion in the record is legal error that requires remand. See
Rosado v. Sec’y of Health and Human Servs., 807 F.2d 292, 293 (1st
Cir. 1986); Pierce v. Colvin, No. CV 15-13596, 2017 WL 1129939, at
*12 (D. Mass. Mar. 24, 2017).
Although there are certain “limited exceptions” to this
rule, such as that “an ALJ need not address specific evidence in
the record that either does not support the claimant’s position
or simply repeats other evidence that the ALJ’s does not
consider,” Grenier v. Colvin, No. 14-cv-153-PB, 2015 WL 5095899,
at *2 (D.N.H. July 2, 2015), those exceptions are not present
here. The opinion evidence ignored by the ALJ supports Muniz’s
position and is not cumulative of other evidence the ALJ
addresses in his decision. Therefore, the ALJ was required to
consider the medical opinions mentioned above, and his failure
to do so requires remand.
In light of the fact that the ALJ has reviewed Muniz’s case
twice, the court believes that this is a case where “a fresh
look by another ALJ upon remand would be beneficial.” Simpson
8 v. Colvin, 2 F. Supp. 3d 81, 93 (D. Mass. 2014) (internal
quotation marks, citations, and alterations omitted) (directing
the Commissioner to assign a new ALJ to a case in light of the
ALJ having reviewed a case twice). Accordingly, the court
directs the Acting Commissioner to assign a new ALJ to this case
on remand.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 9) is granted. The Acting Commissioner’s motion
to affirm (document no. 13) is denied.
The case is remanded for further administrative proceedings
pursuant to sentence four of § 405(g) in accordance with this
order.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
September 15, 2017
cc: Daniel W. McKenna, Esq. T. David Plourde, Esq.