UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Richard Paul Meldrem
v. Civil No. 16-cv-156-JL Opinion No. 2017 DNH 096 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Richard Paul Meldrem has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability and disability insurance benefits. An
administrative law judge at the SSA (“ALJ”) ruled that, despite
the severe impairments of “degenerative disc disease of the
lumbar spine and degenerative joint disease bilateral ankles
status post remote surgery,” Meldrem retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and thus is not
disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Appeals Council later denied Meldrem’s request for review, see
id. § 404.967, with the result that the ALJ’s decision became
the final decision on his application, see id. § 404.981.
Meldrem then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security). Meldrem has moved to reverse the decision, see L.R. 9.1(b),
contending that the ALJ erred: (1) in his evaluation of the
medical evidence from Meldrem’s treating physician and the State
agency reviewer; (2) in his evaluation of Meldrem’s subjective
complaints and credibility; and (3) at step five of the process
by relying on testimony from the Vocational Expert absent
evidence about the transferability of Meldrem’s skills. The
Acting Commissioner of the SSA has cross-moved for an order
affirming the ALJ’s decision. See L.R. 9.1(e). After careful
consideration, the court grants Meldrem’s motion to reverse (and
denies the Acting Commissioner’s motion to affirm) the ALJ’s
decision.
I. Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.” Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
court will uphold the ALJ’s decision if it is supported by “such
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotations omitted). Though the evidence in the record
may support multiple conclusions, the court will still uphold
the ALJ’s findings “if a reasonable mind, reviewing the evidence
2 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).
II. Background1
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Meldrem’s request for disability
and disability insurance benefits. See 20 C.F.R. § 416.920.
After determining that Meldrem had not engaged in substantial
gainful activity after the alleged onset date of his disability,
March 31, 2012, the ALJ analyzed the severity of Meldrem’s
impairments. At this second step, the ALJ concluded that
Meldrem had severe impairments: degenerative disc disease of
the lumbar spine and degenerative joint disease bilateral ankles
status post remote surgery.2
At the third step, the ALJ found that Meldrem’s severe
impairments did not meet or medically equal the severity of one
of the impairments listed in the Social Security regulations.
See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. After
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (document no. 12) is incorporated by reference. See L.R. 9.1(d). 2 Admin. R. at 23.
3 reviewing the medical evidence of record, Meldrem’s own
statements, and the opinions, among others, of Meldrem’s
treating physician, Dr. Ajay Sharma, and a non-examining state
agency physician, Dr. Jonathan Jaffe, the ALJ concluded that,
Meldrem retained the RFC to perform light work, “except that he
can lift and carry 20 pounds occasionally and 10 pounds
frequently, can stand and walk for 3 hours in an 8 hour day and
sit for 6 hours in an 8 hour day, can use his hands and feet
without limitation and can occasionally perform postural
activities.”3 Finding that, even limited in this manner, Meldrem
was able to perform jobs that exist in significant numbers in
the national economy, the ALJ concluded his analysis and found
that Meldrem was not disabled within the meaning of the Social
Security Act.
III. Analysis
Among other arguments, Meldrem contends that ALJ erred when
he “accorded substantial weight” to the opinion of Dr. Jaffee,
the state agency physician who reviewed Meldrem’s medical
records, but did not examine or treat him.4 The ALJ afforded
that weight to Dr. Jaffe’s opinion, and adopted that opinion in
3 Id. at 14-16. 4 Admin. R. at 29.
4 significant part into Meldrem’s RFC,5 on the sole basis that the
opinion was “consistent with the objective clinical and test
findings documented in the evidence of record.”6
Dr. Jaffe conducted his review on the record as it existed
on October 9, 2013. Dr. Jaffe did not, therefore, review
several records created after that date -- including a
January 16, 2014 neuro-surgical evaluation, a June 12, 2014 EMG
test, documentation of epidural steroid injections given to
Meldrem on November 12, 2014, and records from the PainCare
Centers of Merrimack dated December 16, 2014.7 Meldrem contends
that the ALJ erred by according “substantial weight” to
Dr. Jaffe’s opinion, on the basis that it was consistent with
the medical evidence of record, when Dr. Jaffe did not review
the entire record.
“[I]t ‘can indeed be reversible error for an administrative
law judge to rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full medical
record.’” Brown v. Colvin, 2015 DNH 141, 6-7 (quoting Ferland
v. Astrue, 2011 DNH 169, 11 (McAuliffe, J.)). Of course, “the
5 Compare Admin. R. at 24, with Admin R. at 86-87. 6 Admin. R. at 29. 7 Admin. R. at 310-14, 345-47, 358, 361-64.
5 fact that an opinion was rendered without the benefit of the
entire medical record does not, in and of itself, preclude an
ALJ from giving significant weight to that opinion.” Coppola v.
Astrue, 2014 DNH 33, 23–24. An ALJ may yet rely on such an
opinion “where the medical evidence postdating the reviewer's
assessment does not establish any greater limitations, or where
the medical reports of claimant's treating providers are
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Richard Paul Meldrem
v. Civil No. 16-cv-156-JL Opinion No. 2017 DNH 096 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Richard Paul Meldrem has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability and disability insurance benefits. An
administrative law judge at the SSA (“ALJ”) ruled that, despite
the severe impairments of “degenerative disc disease of the
lumbar spine and degenerative joint disease bilateral ankles
status post remote surgery,” Meldrem retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and thus is not
disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Appeals Council later denied Meldrem’s request for review, see
id. § 404.967, with the result that the ALJ’s decision became
the final decision on his application, see id. § 404.981.
Meldrem then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security). Meldrem has moved to reverse the decision, see L.R. 9.1(b),
contending that the ALJ erred: (1) in his evaluation of the
medical evidence from Meldrem’s treating physician and the State
agency reviewer; (2) in his evaluation of Meldrem’s subjective
complaints and credibility; and (3) at step five of the process
by relying on testimony from the Vocational Expert absent
evidence about the transferability of Meldrem’s skills. The
Acting Commissioner of the SSA has cross-moved for an order
affirming the ALJ’s decision. See L.R. 9.1(e). After careful
consideration, the court grants Meldrem’s motion to reverse (and
denies the Acting Commissioner’s motion to affirm) the ALJ’s
decision.
I. Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.” Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
court will uphold the ALJ’s decision if it is supported by “such
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotations omitted). Though the evidence in the record
may support multiple conclusions, the court will still uphold
the ALJ’s findings “if a reasonable mind, reviewing the evidence
2 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).
II. Background1
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Meldrem’s request for disability
and disability insurance benefits. See 20 C.F.R. § 416.920.
After determining that Meldrem had not engaged in substantial
gainful activity after the alleged onset date of his disability,
March 31, 2012, the ALJ analyzed the severity of Meldrem’s
impairments. At this second step, the ALJ concluded that
Meldrem had severe impairments: degenerative disc disease of
the lumbar spine and degenerative joint disease bilateral ankles
status post remote surgery.2
At the third step, the ALJ found that Meldrem’s severe
impairments did not meet or medically equal the severity of one
of the impairments listed in the Social Security regulations.
See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. After
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (document no. 12) is incorporated by reference. See L.R. 9.1(d). 2 Admin. R. at 23.
3 reviewing the medical evidence of record, Meldrem’s own
statements, and the opinions, among others, of Meldrem’s
treating physician, Dr. Ajay Sharma, and a non-examining state
agency physician, Dr. Jonathan Jaffe, the ALJ concluded that,
Meldrem retained the RFC to perform light work, “except that he
can lift and carry 20 pounds occasionally and 10 pounds
frequently, can stand and walk for 3 hours in an 8 hour day and
sit for 6 hours in an 8 hour day, can use his hands and feet
without limitation and can occasionally perform postural
activities.”3 Finding that, even limited in this manner, Meldrem
was able to perform jobs that exist in significant numbers in
the national economy, the ALJ concluded his analysis and found
that Meldrem was not disabled within the meaning of the Social
Security Act.
III. Analysis
Among other arguments, Meldrem contends that ALJ erred when
he “accorded substantial weight” to the opinion of Dr. Jaffee,
the state agency physician who reviewed Meldrem’s medical
records, but did not examine or treat him.4 The ALJ afforded
that weight to Dr. Jaffe’s opinion, and adopted that opinion in
3 Id. at 14-16. 4 Admin. R. at 29.
4 significant part into Meldrem’s RFC,5 on the sole basis that the
opinion was “consistent with the objective clinical and test
findings documented in the evidence of record.”6
Dr. Jaffe conducted his review on the record as it existed
on October 9, 2013. Dr. Jaffe did not, therefore, review
several records created after that date -- including a
January 16, 2014 neuro-surgical evaluation, a June 12, 2014 EMG
test, documentation of epidural steroid injections given to
Meldrem on November 12, 2014, and records from the PainCare
Centers of Merrimack dated December 16, 2014.7 Meldrem contends
that the ALJ erred by according “substantial weight” to
Dr. Jaffe’s opinion, on the basis that it was consistent with
the medical evidence of record, when Dr. Jaffe did not review
the entire record.
“[I]t ‘can indeed be reversible error for an administrative
law judge to rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full medical
record.’” Brown v. Colvin, 2015 DNH 141, 6-7 (quoting Ferland
v. Astrue, 2011 DNH 169, 11 (McAuliffe, J.)). Of course, “the
5 Compare Admin. R. at 24, with Admin R. at 86-87. 6 Admin. R. at 29. 7 Admin. R. at 310-14, 345-47, 358, 361-64.
5 fact that an opinion was rendered without the benefit of the
entire medical record does not, in and of itself, preclude an
ALJ from giving significant weight to that opinion.” Coppola v.
Astrue, 2014 DNH 33, 23–24. An ALJ may yet rely on such an
opinion “where the medical evidence postdating the reviewer's
assessment does not establish any greater limitations, or where
the medical reports of claimant's treating providers are
arguably consistent with, or at least not ‘clearly inconsistent’
with, the reviewer's assessment.” Ferland, 2011 DNH 169 at 11
(internal citations omitted).
Here, the ALJ relied on Dr. Jaffe’s opinion on the grounds
that it was “consistent with the objective clinical and test
findings documents in the evidence of record.”8 It is unclear
whether the ALJ included the evidence post-dating Dr. Jaffe’s
assessment in that rather cursory exposition. Nor did the ALJ
more specifically address whether the evidence post-dating
Dr. Jaffe’s review established any greater limitations or was
even arguably consistent with Dr. Jaffe’s assessment. Cf.
Brown, 2015 DNH 141, 7-8 (affirming ALJ’s reliance on non-
examining medical source where ALJ found post-dating evidence
“remain[ed] consistent with the record in its entirety”);
8 Admin. R. at 29.
6 Ferland, 2011 DNH 169, 12 (affirming ALJ’s reliance on non-
examining medical source where ALJ concluded that the opinion
was consistent with the post-dating evidence). Because the ALJ
accorded substantial weight to, and in large part adopted, the
opinion of Dr. Jaffe without clearly addressing its consistency
(or lack thereof) with the evidence post-dating that opinion,
the court reverses the ALJ’s decision and remands this case to
the SSA for further consideration.
IV. Conclusion
Finding that the ALJ erred in his treatment of Dr. Jaffe’s
opinion, the court need not -- and therefore does not -- address
Meldrem’s other arguments.9 Meldrem’s motion to reverse the
SSA’s decision10 is GRANTED and the Acting Commissioner’s motion
9 Though the court need not determine whether, in this case, the ALJ improperly discounted the opinion of Meldrem’s treating physician, it does find troubling the ALJ’s unsupported speculation as to that physician’s motives. See Admin. R. at 28. Other courts have likewise expressed reservations about an ALJ’s treating-physician analysis in light of similarly-worded speculation. See Halla v. Colvin, No. 15-CV-30021-KAR, 2016 WL 234802, at *5 (D. Mass. Jan. 20, 2016); Gagnon v. Colvin, No. 1:15-CV-273-DBH, 2016 WL 403063, at *4 (D. Me. Jan. 13, 2016), report and recommendation adopted, No. 1:15-CV-273-DBH, 2016 WL 409674 (D. Me. Feb. 2, 2016). 10 Document no. 8.
7 to affirm11 is DENIED. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: May 23, 2017
cc: Raymond J. Kelly, Esq. T. David Plourde, AUSA
11 Document no. 10.