UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Douglas Martin
v. Civil No. 18-cv-461-JL Opinion No. 2019 DNH 073 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Paul Martin moves to reverse the decision of the Acting
Commissioner of the Social Security Administration (“SSA”) 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 for further
proceedings.
I. Scope of Review
The scope of judicial review of the Acting Commissioner’s
decision is as follows:
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
Martin was born in 1969. He has worked in construction, as
a farm hand, as a stocker in a grocery store, and as an escort
driver. He stopped working in August of 2014, and the date on
which he was last insured for DIB, his “DLI,” was December 31,
2015. Before his DLI, Martin was diagnosed with, and/or treated
for obstructive sleep apnea, asthma, poorly controlled diabetes
mellitus, insomnia, depression with anxiety, malaise, a
transient ischemic attack,1 nephrolithiasis,2 benign essential
hypertension, acute bronchitis, atrial fibrillation, morbid
1 Ischemic means “[r]elating to or affected by ischemia.” Stedman’s Medical Dictionary 1001 (28th ed. 2006). Ischemia is a “[l]ocal loss of blood supply due to mechanical obstruction (mainly arterial narrowing or disruption) of the blood vessel.” Id.
2 Nephrolithiasis is the “[p]resence of renal calculi.” Stedman’s, supra note 1, at 1290. Calculi are “concretions formed in any part of the body, most commonly in the passages of the biliary and urinary tracts . . . SYN stone.” Id. at 289.
2 obesity, a ganglion cyst, and neuropathy.3 Since his DLI, Martin
has been diagnosed with “[p]robable right heart dysfunction
(right heart failure),” Administrative Transcript (hereinafter
“Tr.”) 1305, and left-shoulder calcific tendinopathy.4
Martin applied for DIB in February of 2015, claiming that
he had been disabled since September 1, 2014, as a result of
diabetic neuropathy, heart palpitation and hypertension, atrial
fibrillation, insomnia, asthma, diverticulitis, depression and
anxiety, and obstructive sleep apnea.
In April of 2015, Dr. Marcia Lipski, a physician and state-
agency consultant, reviewed Martin’s medical records and
assessed his physical residual functional capacity (“RFC”).5
Martin underwent a consultative psychological examination in May
of 2015, and a month later, Dr. Jan Jacobson, a state-agency
psychological consultant, reviewed Martin’s medical records and
assessed his mental RFC. In November of 2015, Martin’s primary
3 Neuropathy is “a disease involving the cranial nerves or the peripheral or autonomic nervous system.” Stedman’s, supra note 1, at 1313. 4 Tendinopathy is “any pathologic condition of a tendon.” Dorland’s Illustrated Medical Dictionary 1881 (32nd ed. 2012).
5 “[R]esidual functional capacity ‘is the most [a claimant] can still do despite [his] 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)(1), which governs claims for DIB) (brackets in the original). 3 care provider referred him to Drs. Karen Huyck and Raymond Klein
“as part of a Social Security disability evaluation,” Tr. 732.
Drs. Huyck and Klein, in turn, “referred [Martin] for [a]
residual functional capacity exam with [their practice’s]
occupational therapist to further objectively document his
functional impairment.” Tr. 736. The occupational therapist,
Gregory Morneau, performed the RFC exam that Dr. Huyck and Klein
had requested, and he produced a report on it. Thereafter, Dr.
Huyck reviewed Mr. Morneau’s report with Martin, reproduced it
in a progress note, and provided a brief commentary on it.
The SSA denied Martin’s application for DIB. He then
requested, and received, a hearing before an Administrative Law
Judge (“ALJ”). At the hearing, the ALJ took testimony from Dr.
Joseph Gaeta, a cardiologist who reviewed Martin’s medical
records. Dr. Gaeta testified that none of Martin’s physical
impairments, either alone or in combination, met or medically
equaled the severity of a “listed impairment,” i.e., a medical
condition on the SSA’s list of impairments that are per se
disabling. As to Martin’s physical RFC, Dr. Gaeta testified
that Martin had no exertional, manipulative, visual,
communicative, or environmental limitations. But, with respect
to postural activities, Dr. Gaeta opined that Martin: (1) was
limited to occasional stooping, bending, crawling, and kneeling;
4 and (2) needed to avoid hazardous machinery, heights, and the
climbing of ladders and scaffolds.
The ALJ also took testimony from a vocational expert
(“VE”). He began by asking the VE to consider the following
hypothetical individual:
[A] 47 year old with an eighth grade education and the Claimant’s work history [with] no limitations with regard to lifting, sitting, standing, or walking [who] should avoid hazards, unprotected heights, and climbing ladders, scaffoldings, and ropes. The remaining postural are at occasional.
Tr. 65. The VE testified that the individual described in the
ALJ’s hypothetical question, which was based on Dr. Gaeta’s RFC
assessment, could perform Martin’s previous heavy-duty, semi-
skilled stock-clerk job, and could also perform three light-duty
unskilled jobs: Marker II, Fruit Distributer, and Mail Clerk.
The ALJ asked a second hypothetical question, positing an
individual with claimant’s same age, education, and work
history, and who:
Can lift 20 pounds occasionally, 10 pounds frequently. Can stand or walk for two hours, sit for six. Can occasionally operate foot controls with his lower extremities. Should never climb ladders, scaffoldings, or ropes, and the remaining posturals are at occasional.
Tr. 66-67. The VE testified that the individual described in
the ALJ’s second question, which was based on Dr. Lipski’s RFC
assessment: (1) could not do any of claimant’s past work; (2)
could not do the jobs of Marker II, Fruit Distributor, or Mail
5 Clerk; but (2) could perform the sedentary unskilled jobs of
Table Worker, Food and Beverage Order Clerk, and Surveillance
System Monitor. In response to the ALJ’s final hypothetical
question, the VE testified that none of the three jobs he
identified would be precluded if the hypothetical individual
were further “limited to one to three step instructions and
[was] able to sustain concentration, persistence, and pace
during the typical two-hour periods of an eight-hour workday and
40-hour workweek,” Tr. 68, a limitation that was based on Dr.
Jacobson’s assessment of Martin’s mental RFC.
In response to questioning by claimant’s counsel, the VE
testified that the Table Worker, Food and Beverage Order Clerk,
and Surveillance System Monitor jobs: (1) would not be
precluded if the hypothetical individual were limited to 30
minutes of standing at a time and 37 minutes of sitting at a
time, limitations that appear to be based on Mr. Morneau’s RFC
assessment; (2) would not be precluded if the individual “would
not be able to use his lower extremities for any kind of pushing
or pulling, or foot controls,” Tr. 70, a limitation that is more
restrictive than the limitation on those exertional activities
that Dr. Lipski described in her RFC assessment; but (3) would
be precluded if the individual “had no ability to reach, handle,
or finger,” id., a limitation that appears to have no support in
the medical-opinion evidence. The VE also testified that an
6 inability to squat or stoop, another limitation that appears to
lack support in the medical-opinion evidence, would preclude a
person from doing the jobs of Food and Beverage Order Clerk and
Table Worker, but would not preclude performance of the
Surveillance System Monitor job.
After Martin’s hearing, the ALJ issued a decision in which
he determined that Martin had two severe impairments, cardiac
arrythmia and obesity, neither of which, either alone or in
combination, met or medically equaled the severity of any listed
impairment. Then, the ALJ found that Martin
had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he needs to avoid hazards, unprotected heights and climbing ladders/ scaffoldings/ropes [and] is limited to occasional climbing stairs/ramps and occasional bending, stooping, crouching, kneeling, and crawling.
Tr. 27. In other words, the ALJ adopted Dr. Gaeta’s opinions on
claimant’s physical RFC.
When assessing Martin’s RFC, the ALJ recounted various
statements claimant had made “concerning the intensity,
persistence and limiting effects of [the] symptoms [of his
impairments],” Tr. 27, but found that those statements were “not
entirely consistent with the medical evidence and other evidence
in the record,” id. In addition, the ALJ gave little weight to
Dr. Lipski’s opinions, little weight to Mr. Morneau’s RFC
assessment, and great weight to Dr. Gaeta’s opinions.
7 Based on his assessment of Martin’s RFC, and the testimony
of the VE, the ALJ determined that Martin could perform his past
work as a grocery-store stocker. Consequently, the ALJ
concluded that Martin was not under a disability from September
1, 2014, through December 31, 2015, which was the date on which
he was last insured for DIB.
III. Discussion
A. The Legal Framework
To be eligible for DIB, a person must: (1) be insured for
that benefit; (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). The only question in this case is whether
the ALJ correctly determined that Martin was not under a
disability from September 1, 2014, through December 31, 2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, 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)
8 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
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)).6 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.
6 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. 9 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. Martin’s Claims
Martin claims that the ALJ erred in assessing his RFC by:
(1) “[i]gnoring vital evidence of [his] limitations caused by
medically determinable impairments,” Cl.’s Mem. of Law (doc. no.
17-1) 13; (2) improperly evaluating the medical-opinion
evidence; and (3) improperly assessing his statements about his
symptoms. Martin’s third claim warrants a remand.
1. Assessment of Symptoms
Martin claims that “[t]he ALJ’s assessment of [his]
credibility was flawed,” Cl.’s Mem. of Law (doc. no. 17-1) 14,
and he advances multiple grounds for that claim, some
meritorious, others less so. The specific claim that entitles
Martin to a remand is his assertion that when assessing the
limiting effects of his symptoms, the ALJ engaged in an
incomplete analysis. That said, the court begins by describing
the applicable legal principles and then turns to the ALJ’s
application of those principles.
But first, it is important to understand that the ALJ did
not assess Martin’s credibility. In his decision, the ALJ cited
both Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186
(S.S.A. July 2, 1996), which uses the concept of credibility,
10 and SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016), which
rescinded SSR 96-7p and disavowed the concept of credibility.
But even though he cited SSR 96-7p, the ALJ never used the term
“credibility” in his decision. Thus, claimant’s use of that
term in his memorandum of law is a somewhat misleading.7
a. Legal Principles
When assessing a claimant’s symptoms, an ALJ must employ a
two-step process. The first step in the analysis is to
determine whether the claimant has a medically determinable
impairment that could reasonably be expected to produce his
alleged symptoms. See SSR 16-3p, 2016 WL 1119029, at *3. If
so, the second step is to evaluate the intensity and persistence
of the claimant’s symptoms and determine the extent to which
they limit his ability to perform work-related activities.
When undertaking the second step, an ALJ must first
determine whether the claimant’s alleged symptoms are consistent
with the objective medical evidence. If not, then the ALJ must
consider the other evidence in the record, including “statements
from the individual, medical sources, and any other sources that
might have information about the individual’s symptoms,
7 Moreover, because “SSR 16-3p is materially the same as its predecessor,” Tellier v. U.S. Soc. Sec. Admin., Acting Comm’r, No. 17-cv-184-PB, 2018 WL 3370630, at *6 n.6 (D.N.H. July 10, 2018), the mere fact that the ALJ in this case cited SSR 96-7p is hardly a reversible error,” see Venus v. Berryhill, No. 17- cv-482-PB, 2019 WL 157296, at *14 (D.N.H. Jan. 9, 2019). 11 including agency personnel, as well as the factors set forth in
[the SSA’s] regulations.” SSR 16-3p, 2016 WL 1119029, at *5.
The factors to which SSR 16-3p refers are set forth in 20 C.F.R.
§ 404.1529(c)(3), and are sometimes called the Avery factors,
see 797 F.2d at 29. The Avery factors include:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and restrictions due to pain or other symptoms.
SSR 16-3p, 2016 WL 1119029, at *7.
b. Application
In his decision, the ALJ correctly described the applicable
analytical framework and, in particular, he noted that
whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, [an ALJ] must consider other evidence in the
12 record to determine if the claimant’s symptoms limit the ability to do work-related activities.
Tr. 27 (emphasis added). The problem in this case is that after
the ALJ determined that claimant’s “medically determinable
impairments could reasonably be expected to cause [his] alleged
symptoms,” Tr. 27, he only performed half of the second step of
the requisite analysis. Specifically, he stated that “because
the claimant has failed to establish a correlation between [his]
allegations and the objective medical evidence, the undersigned
finds the claimant’s symptom[s] are not supported to the extent
alleged.” Tr. 28. In other words, after performing the first
half of the second step of the analysis, i.e., considering the
objective medical evidence, the ALJ went no further, and failed
to consider any other evidence in the record, even though he had
acknowledged his obligation to do so in his description of the
applicable analytical framework. To be fair, when describing
Dr. Gaeta’s testimony regarding his step-3 finding and/or his
RFC assessment, the ALJ did note Dr. Gaeta’s observations that
Martin had done well after each of his two cardiac ablation
procedures, see Tr. 29, and a claimant’s treatment is one of the
Avery factors, see SSR 16-3p, 2016 WL 1119029, at *7. But the
ALJ’s passing references to claimant’s cardiac ablations do not
qualify as “a proper discussion and analysis [that] identif[ies]
what testimony [by the claimant] is not [supported] and what
13 evidence undermines the claimant’s complaints,” Gottier v.
Colvin, No. 15-cv-355-SM, 2016 WL 4734402, at *6 (D.N.H. Sept.
12, 2016) (quoting Anderson v. Colvin, No. 14-cv-15-LM, 2014 WL
5605124, at *7 (D.N.H. Nov. 4, 2014)), and the plain language of
the ALJ’s decision makes it clear that he rested his decision to
discount claimant’s symptoms solely on the lack of support from
the objective medical evidence.
While the ALJ relied solely upon the lack of objective
medical evidence to discount the limiting effects of Martin’s
alleged symptoms, “SSR 16-3p . . . explicitly precludes an ALJ
from ‘evaluat[ing] an individual’s symptoms based solely on
objective medical evidence,’” Freddette v. Berryhill, No. 17-cv-
672-PB, 2019 WL 121249, at *8 n.5 (D.N.H. Jan. 7, 2019) (quoting
SSR 16-3p, 2016 WL 1119029, at *4). Therefore, “it was [a]
legal error for [the] ALJ to discredit [Martin’s] statements
solely for lacking corroborating objective evidence,” Freddette,
2019 WL 121249, at *8 n.5 (citing Clavette v. Astrue, No. 10-cv-
580-JL, 2012 WL 472757, at *9 (D.N.H. Feb. 7, 2012)); cf.
Guziewicz v. Astrue, No. 10-cv-310-SM, 2011 WL 128957, at *6
(D.N.H. Jan. 14, 2011) (“If . . . the ALJ used the lack of
objective medical evidence as his basis for finding [claimant]
to be not entirely credible, rather than treating such a finding
as compelling him to conduct a credibility assessment, that
constitutes legal error on the ALJ’s part.”). The ALJ’s legal
14 error, in turn, requires a remand. See, e.g., Gottier, 2016 WL
4734402, at *6; Weaver v. Astrue, No. 10-cv-340-SM, 2011 WL
2580766, at *8 (D.N.H. May 25, 2011), R. & R. approved by 2011
WL 2579776 (June 27, 2011); Guziewicz, 2011 WL 128957, at *6.
The Acting Commissioner’s arguments to the contrary are not
persuasive. In response to Martin’s claim that the ALJ ignored
his activities of daily living, the Acting Commissioner
correctly states that: (1) an ALJ “is not required to address
every Avery factor in [his] written decision for [his]
evaluation to be supported by substantial evidence,” Freddette,
2019 WL 121249, at *9 (citing Ault v. Astrue, No. 10-cv-553-JL,
2012 WL 72291, at *5 (D.N.H. Jan. 10, 2012)); and (2) an ALJ’s
decision is sufficient if it “contains specific reasons for the
weight given to the individual’s symptoms, [is] consistent with
and supported by the evidence, and [is] clearly articulated so
that any subsequent reviewer can assess how the adjudicator
evaluated the individual’s symptoms,” id. (quoting SSR 16-3p,
2016 WL 1119029, at *9). But here, the ALJ did not rely on any
of the Avery factors to explain why he was discounting the
effects of claimant’s symptoms; the specific reasons he gave
were limited to the lack of objective medical evidence.
Moreover, the Acting Commissioner’s attempt to show that
the ALJ did consider Martin’s daily activities actually
15 demonstrates that he did not. According to the Acting
Commissioner:
[T]he ALJ did reference [Martin’s] testimony regarding his activities. (Tr. 28) (“The claimant testified to an extremely limited range of functional abilities. However, the objective medical evidence of record does not fully support those allegations.”). Accordingly, [claimant’s] assertion that the ALJ ignored his daily functioning is factually inaccurate.
Resp’t’s Mem. of Law (doc. no. 19-1) 14. To the contrary, the
language from the ALJ’s decision that the Acting Commissioner
has quoted demonstrates that the ALJ used objective medical
evidence, not evidence of Martin’s daily activities, to discount
his statements about the functional limitations that resulted
from his symptoms. In sum, the only specific reason the ALJ
gave for discounting Martin’s statements about his symptoms was
the lack of objective medical evidence and, as the court has
explained, that was a legal error.
Finally, while the Acting Commissioner does not advance
this argument, the court notes that in the section of his
decision devoted to assessing claimant’s symptoms, the ALJ
stated that
[w]ith regard to support for the above residual functional capacity, the undersigned incorporates herein by reference, as if fully set forth, the above discussion regarding the severe and non-severe impairments as evidence of the clinical findings and functional capabilities of the claimant during the period at issue.
16 Tr. 28. To the extent that the foregoing statement may
reasonably be construed as an attempt by the ALJ to incorporate
findings he had made earlier in his decision into his assessment
of claimant’s symptoms, that attempt does not satisfy his
obligation to support his assessment of claimant’s symptoms with
evidence beyond the objective medical evidence. On this point,
this case his much in common with Gottier, in which Judge
McAuliffe explained:
The ALJ did provide a detailed review of Gottier’s activities of daily living in the context of his step-two determination, and again when summarizing her Function Report. However, missing from both discussions is any explanation as to why the ALJ found such activities might make Gottier’s statements concerning her pain less credible. To the extent the ALJ did determine that these [activities of daily living] were inconsistent with Gottier’s allegations regarding her symptoms, he ought to have so explained in his order.
2016 WL 4734402, at *6. So too, here. While the ALJ mentioned
some of Martin’s activities of daily living in earlier parts of
his decision, that did not relieve him of the obligation, when
assessing claimant’s symptoms, “[t]o perform a proper discussion
and analysis [by] identify[ing] what testimony is not
[supported] and what evidence undermines the claimant’s
complaints,” id. (quoting Anderson, 2014 WL 5605124, at *7).
To summarize, by limiting his assessment of claimant’s
symptoms to a consideration of the degree to which claimant’s
statements about his symptoms were supported by objective
17 medical evidence, the ALJ committed a legal error that requires
remand.
2. Medical Opinions
Because this case must be remanded for a proper assessment
of claimant’s symptoms, there is no need for an in-depth
analysis of Martin’s claim that the ALJ erred in his evaluation
of the medical-opinion evidence. However, for the benefit of
the parties moving forward, the court offers the following
observations.
Claimant does not couch his challenge to the ALJ’s
evaluation of the medical-opinion evidence in terms of the
applicable regulations, i.e., 20 C.F.R. § 404.1527(c).8
Nevertheless, he appears to be claiming that the ALJ erred by
giving little weight to Dr. Huyck’s opinions and by giving too
much weight to Dr. Gaeta’s opinions. According to Martin, Dr.
Gaeta’s “answers concerning [his] medical conditions were
incomplete and difficult to follow,” Cl.’s Mem. of Law (doc. no.
17-1) 5, and Dr. Huyck’s “RFC assessment precludes [him] from
performing any type of substantial gainful work activity on a
regular and continuing basis,” id. at 11.
8 The rules in 20 C.F.R. § 404.1527 apply to claims, such as the one in this case, that were filed before March 27, 2017. For claims filed after that date, the rules for evaluating medical-opinion evidence are set out in 20 C.F.R. § 404.1520c.
18 As a preliminary matter, it is far from clear that Dr.
Huyck ever gave an opinion on Martin’s RFC. Rather, she merely
met with Martin to review the results of Mr. Morneau’s RFC
assessment. Thus, the RFC assessment at issue was produced by
Mr. Morneau, and Mr. Morneau is not an acceptable medical
source.9 However, even if Mr. Morneau were an acceptable medical
source, and his RFC assessment were entitled to substantial
weight as a medical opinion, it is far from clear that there is
anything in that assessment that would count as substantial
evidence to support a decision that Martin was disabled,
notwithstanding Martin’s belief that the limitations described
in Mr. Morneau’s assessment preclude employment. Specifically,
the VE testified that the limitations on sitting and standing in
Mr. Morneau’s RFC assessment would not preclude Martin from
performing the jobs he had previously identified, and while the
VE did testify that a complete inability to reach, handle, or
finger would preclude those jobs, Mr. Morneau’s RFC assessment
cannot reasonably be read as endorsing such restrictive
limitations.
9 The SSA has recently changed the regulation that defines the term “acceptable medical source.” Compare 20 C.F.R. §§ 404.1502 & 404.1513(a) (2016 ed.) with 20 C.F.R. § 404.1502(a) (2017 ed.). But, as an occupational therapist, Mr. Morneau does not qualify as an acceptable medical source under either regulation. 19 In short, based on the record in its current form,
claimant’s challenge to the ALJ’s evaluation of the medical-
opinion evidence does not appear to be well founded.
IV. Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision10 is denied, and
Martin’s motion to reverse that decision11 is granted to the
extent that this matter is remanded to the Acting Commissioner,
pursuant to sentence four of 42 U.S.C. § 405(g), for further
proceedings consistent with this order. The clerk of the court
shall enter judgment in favor of Martin and close the case.
SO ORDERED.
____________________________ Joseph N. Laplante United States District Judge
Dated: May 6, 2019
cc: Judith E. Gola, Esq. Jessica Tucker, Esq.
10 Document no. 19. 11 Document no. 17. 20