Morris v . SSA CV-11-248-JL 9/28/12

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Peter A . Morris

v. Civil N o . 11-cv-248-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the denial of Peter Morris’s

application for Social Security benefits. See

(g). An administrative law judge (“ALJ”) found that Morris

was disabled within the meaning of the Social Security Act from

December 2 7 , 1983 through January 1 , 2001, and awarded him

benefits for that period. The ALJ also found, however, that

Morris’s condition had improved as of January 2 , 2001, such that

he was capable of performing substantial gainful activity

beginning that date, see

(f), and

accordingly denied Morris benefits after that date.

Morris has moved for an order reversing that decision, see

L.R. 9.1(b)(1), arguing that the ALJ’s conclusion that his

condition had improved was not supported by substantial evidence,

insofar as the ALJ failed to assign appropriate weight to certain

evidence and relied upon a defective hypothetical posed to the

vocational expert who testified. The Commissioner of the Social

Security Administration (“SSA”) has cross-moved for an order affirming that decision, see L.R. 9.1(d), arguing to the

contrary. This court has subject-matter jurisdiction under

(g) (Social Security). After reviewing the

administrative record, the parties’ joint statement of material

facts, and their respective memoranda, the court concludes that

the ALJ improperly discounted the opinion of Morris’s treating

physician. The court accordingly grants Morris’s motion and

denies the Commissioner’s motion.

I. Applicable legal standard

This court’s review under § 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v .

Chater,

1 , 35 (1st Cir. 1999). The ALJ is responsible

for determining issues of credibility, resolving conflicting

evidence, and drawing inferences from the evidence in the record.

See Rodriguez v . Sec’y of Health & Human Servs.,

(1st Cir. 1981). If the ALJ’s factual findings are supported

by substantial evidence in the record, i.e., “such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion,” Richardson v . Perales,

(1971)

(quotations omitted), they are conclusive, even if the court does

not agree with the ALJ’s decision and other evidence supports a

contrary conclusion. See

(g); Tsarelka v . Sec’y

2 of Health & Human Servs.,

(1st Cir. 1988). The

ALJ’s findings are not conclusive, however, if they were “derived

by ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen, 172 F.3d at 3 5 .

II. Background

Pursuant to this court’s local rules, the parties filed a

Joint Statement of Material Facts (document n o . 1 6 ) , which is

part of the record reviewed by the court. See LR 9.1(d). This

court will briefly recount the key facts and otherwise

incorporates the parties’ joint statement by reference.

In August and September 2009, Morris, who was 47 years old

at the time, filed applications for disability insurance

benefits, including adult disabled child benefits, and

supplemental security income. Admin. R. at 174-89. Morris’s

applications claimed that he had been disabled since December 2 7 ,

1983. Id. at 176. The SSA initially denied Morris’s

applications on February 2 5 , 2010, id. at 104-15, and Morris

requested a hearing before an ALJ, see generally

et seq.

The ALJ held a hearing on December 6, 2010. Prior to the

hearing, Morris submitted a number of medical records pre- and

postdating the alleged onset of his disability, and Morris’s

father submitted a function report relating his observations of

3 Morris’s day-to-day activities and abilities. See Admin. R. 283-

91. At the hearing, Morris testified about his work history and

his day-to-day activities (as did his father), as well as the

symptoms of his condition. A vocational expert engaged by the

SSA also appeared and testified at the hearing.

The evidence showed that Morris had suffered from anxiety

and depression beginning at a young age. Id. at 398-400, 402-04,

410. At the age of 1 6 , he was diagnosed with “a tremendous

amount of anxiety which weakens his ability to concentrate and

his short term memory,” as well as “his abstracting ability, and

ability to understand verbal communications.” Id. at 399. His

judgment in social situations was poor, and his “ability to use

insight or to form a trusting relationship” was adjudged to be

“quite limited.” Id.

Despite these difficulties, Morris completed his GED in

1979. Id. at 223. His work history is somewhat limited. Morris

worked full-time as a maintenance assistant for a rubber company

for less than a year in the early 1980's, and full-time as a tool

crib attendant for the Wentworth Institute of Technology for

about two and a half years before that. Id. at 2 0 , 31-33, 220,

225-28, 249-52. In both positions, Morris worked alongside his

father. Id. at 2 0 , 31-33. At the administrative hearing,

Morris’s father testified that Morris did poorly in both jobs.

4 With regard to Morris’s job as a tool crib attendant, Morris’s

father testified that Morris “had trouble understanding or

getting along or whatever,” and recalled one occasion on which

Morris disappeared and was found sitting on the floor in a

corner, “all hunkered up.” Id. at 3 2 . And with regard to

Morris’s job as a maintenance assistant, Morris’s father

testified that “with the number of people that were there, it

bothered [Morris] going from one machine to another to do some

minor repair on a hydraulic line or something like that. H e , he

didn’t like it.” Id. at 3 3 .

In 1983, Morris was arrested and stopped working. Id. at

23. He remained incarcerated for the next 24 years, and was

released in April 2007. Id. at 1 2 , 1 7 , 219, 224. While

incarcerated, Morris worked for an unknown period of time in the

facility’s learning center and kitchen. Id. at 1 8 , 502-03; see

also id. at 378 (“The claimant states that while he was

incarcerated he worked mostly in janitorial jobs.”). Though

Morris has applied for jobs since being released, he has not

worked since his release, due partially to his criminal record.

Id. at 1 8 , 224.

The administrative record is devoid of any medical records

from the date of Morris’s initial incarceration until 1997. In

December 1997, Morris underwent a mental health evaluation that

5 revealed no evidence of a mood disorder. Id. at 357-61. The

treating social worker determined that no clinical follow-up was

necessary, and advised Morris to contact mental health services

“as needed.” Id. at 358.

At some point in 1998, Morris was diagnosed with depression

and prescribed Nortriptyline to treat its symptoms. Id. at 362.

In early 1999, Morris discontinued the use of Nortriptylene and

began using Zoloft instead. Id. at 485. Although Morris

continued to be diagnosed with a dysthymic disorder after

beginning these medications, his depression was markedly

decreased or eliminated. In late 1999, he reported suffering

“very little” or no depression, id. at 363-65, and his medical

records for the ensuing years repeatedly refer to his depression

as “in remission,” see, e.g., id. at 329-30, 368-69, and his

condition as “at baseline,” see, e.g., id. at 331-33, 498-504.

Following his release, Morris attended a single outpatient

group therapy session in July 2007, but was a “no show” for later

sessions, id. at 513, though he did attend a 30 minute counseling

session with Bruce Latham, DO in August 2007, see id. at 524. In

October 2007, Virginia Rockhill, PhD, completed a comprehensive

psychiatric profile of Morris, apparently in connection with an

earlier application for benefits. See id. at 376-79 (repeatedly

referring to Morris as “the claimant”). Dr. Rockhill noted that

6 Morris suffered from chronic depressive symptoms including

sadness, feelings of worthlessness, social isolation,

hopelessness, and amotivation, as well as some social anxiety

with others. Id. at 378. She also noted that Morris’s “social

functioning appears to be appropriate and effective with his

family” but that it was “difficult for him to interact with

people he does not know.” Id. at 378-79. She adjudged that

Morris was “able to remember and follow instructions as well as

perform simple complex and varied tasks,” but that he would

“become[] anxious when he is working with others” and experience

“difficulties with concentration.” Id. at 379. Based upon her

evaluation, Dr. Rockhill diagnosed Morris with dysthymic

disorder1 and antisocial personality disorder.2 Id.

A mere two months later, Dr. Rockhill again conducted a

psychiatric evaluation of Morris (again, apparently in connection

with an application for benefits). See id. at 576-79. Much of

1 Dysthymic disorder consists of “chronically depressed mood that occurs for most of the day more days than not for at least 2 years.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 376 (4th ed., text revision 2001) (“DSM-IV”). 2 Antisocial personality disorder is demonstrated by “a pervasive pattern of disregard for, and violation o f , the rights of others that begins in childhood or early adolescence and continues into adulthood,” DSM-IV 701; “deceit and manipulation are central features” of the disorder, which is also referred to as psychopathy, sociopathy, or dyssocial personality disorder. Id. at 702.

7 the information related in Dr. Rockhill’s evaluation echoed that

in her earlier evaluation. She noted, however, that Morris

experienced extreme functional loss in social interactions, such

that he could not be around others. Id. at 578. She further

noted that Morris experienced frequent functional loss in work-

related task performance, and continual functional loss due to

work-related stress. Id. Though Morris was able to “initiate a

task,” he could not multi-task, and being around people created

stress for him. Id.

Based upon this evaluation, Dr. Rockhill altered her

diagnosis, concluding that Morris suffered from major depression3

and posttraumatic stress disorder.4 Id. at 579. She recommended

that Morris attempt to manage these maladies with medication and

cognitive therapy, but noted that due to a lack of income or

health insurance, he was unable to afford treatment. Id. Dr.

3 Major depressive disorder is characterized by “one or more Major Depressive Episodes . . . without a history of Manic, Mixed, or Hypomanic Episodes.” DSM-IV 369. “The essential feature of a Major Depressive Episode is a period of at least 2 weeks during which there is either depressed mood or the loss of interest or pleasure in nearly all activities.” Id. at 349. 4 “The essential feature of posttraumatic stress disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor . . . The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event . . . , persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness . . . , and persistent symptoms of increased arousal . . . .” DSM-IV 463.

8 Rockhill also opined that Morris’s general level of functioning

following treatment would be “moderately limited,” but estimated

that it would take “greater than 4 years” for him to return to

work. Id.

Between Dr. Rockhill’s evaluations, Michael Schneider, PhD

performed a mental residual functional capacity assessment of

Morris. Dr. Schneider opined that Morris was moderately limited

in his abilities to (a) understand and remember detailed

instructions; (b) work in coordination with or proximity to

others without being distracted; (c) interact appropriately with

the general public; (d) accept instructions and respond

appropriately to criticism from supervisors; and (e) respond

appropriately to changes in his work setting. Id. at 303-04.

Dr. Schneider further opined that Morris did “have a severe

impairment,” but continued:

Despite [Morris’s] impairment, he retains the ability to understand, remember and carry out short and simple instructions without special supervision. He is able to maintain adequate attention for these kinds of instructions and complete a normal work week. In an environment where he is in a somewhat socially isolated workstation and where supervisory criticism is not overly critical of his performance, and where he does not have to interact with the general public, he is able to interact appropriately with peers and supervisors. Under those conditions, he is able to accommodate to changes in a work setting.

Id. at 305. Dr. Schneider diagnosed Morris with dysthymic

disorder and "[i]nflexible and maladaptive personality traits

9 which cause either significant impairment in social or

occupational functioning or subjective distress." Id. at 310,

314. As a result of these conditions, Dr. Schneider opined that

Morris experienced moderate difficulties in maintaining social

functioning and concentration, persistence, or pace. Id. at 317.

Morris visited the Indian Stream Clinic in February and

March of 2008. Id. at 382-86. The clinic diagnosed Morris with

major depression, but noted at the time that Morris was taking

Zoloft daily and that his depression was stable. Id. Morris

also visited Bruce Latham, DO somewhat regularly in 2008 and

2009. Although Dr. Latham twice noted that Morris was apparently

suffering from depression, see id. at 521, 523, depression was

not mentioned in Dr. Latham’s notes from the bulk of these

visits, see id. at 518-20, 522. In October 2009, Dr. Latham

authored a letter noting Morris’s “history of not interacting

appropriately with others socially over any period of time” due

to his depression. Id. at 516. Dr. Latham noted that although

Morris was on medication for depression and anxiety, he still

suffered “frequent outbreaks.” Id. Dr. Latham closed the letter

by opining that Morris “would have difficulty in a work

environment where he had to work with others or had a supervisor

over him.” Id.

10 Dr. Rockhill completed another psychiatric profile of Morris

in November 2009. Id. at 538-43. She noted that Morris “appears

to have a very good understanding of his activities of daily

living and I would say at this time other than having some

difficulties shopping or going to public areas, he has some

limitations but generally functions well.” Id. at 540. She

opined that Morris’s “ability to function is limited but it is

not precluded.” Id. at 540-41. She noted, however, that

Mr. Morris’ reactions to stress and adaptation to work or work-like situations appear to be quite severe. He cannot handle long-term work commitments due to his panic attacks and is unable to tolerate stressors in the workplace nor is he able to interact appropriately with peers or supervisors. He would likely be able to maintain a schedule but would likely find it difficult to maintain attendance, especially if his work situation required him to be around other people.

Id. at 541. Dr. Rockhill again diagnosed Morris with dysthymic

disorder and posttraumatic stress disorder, as well as avoidant

personality disorder.5 Id. at 542. She opined that if Morris

were to engage in treatment, “it is unlikely that he would make

enough progress even over the course of several years to

attenuate his significant anxiety.” Id.

In January 2010, J. Coyle, PhD conducted a psychiatric

review of Morris in connection with Morris’s present applications

5 Avoidant personality disorder is characterized by “a pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation . . . .” DSM-IV 718.

11 for benefits. See id. at 544-75. Dr. Coyle noted a number of

"[i]nflexible and maladaptive personality traits,” including (1)

"[s]eclusiveness or autistic thinking"; (2) "[p]athologically

inappropriate suspiciousness or hostility"; (3) "[p]ersistent

disturbances of mood or affect"; (4) "[p]athological dependence,

passivity, or aggressivity"; and (5) "[i]ntense and unstable

interpersonal relationships and impulsive and damaging behavior."

Id. at 551. Dr. Coyle opined that due to these traits, Morris

had suffered marked limitations in his activities of daily living

and maintaining his social functioning and concentration,

persistence, or pace during the period from 1983 through 2001.

Id. at 554.

Dr. Coyle further opined, however, that Morris’s “mental

status and associated functional capacities had improved and were

no longer markedly limited by 2001.”6 Id. at 556. Though he

diagnosed Morris as continuing to suffer from dysthymic disorder,

id. at 561, Dr. Coyle found that as a result of this improvement,

Morris experienced only mild restrictions in his activities of

daily living and moderate difficulty in maintaining his social

functioning and concentration, persistence, or pace, id. at 568.

Dr. Coyle then completed a mental residual functional capacity

6 Dr. Coyle also noted a possibility that Morris’s mental health “improved earlier than 2001, but records prior to this time are not currently available for review.” Admin. R. at 556.

12 assessment for Morris, concluding that Morris was moderately

limited in a number of areas, to wit, the abilities t o :

• carry out detailed instructions;

• maintain attention and concentration for extended periods;

• perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances;

• work in coordination with or proximity to others without being distracted by them;

• complete a normal workday and workweek;

• interact appropriately with general public;

• accept instructions and respond appropriately to criticism from supervisors;

• get along with coworkers;

• maintain socially appropriate behavior;

• respond appropriately to changes in work setting; and

• set realistic goals or make plans independently of others.

Id. at 572-73. Dr. Coyle concluded that Morris was otherwise not

significantly limited in his abilities. Id.

Dr. Latham completed a competing residual functional

capacity assessment of Morris in December 2010. Id. at 581-85.

In Dr. Latham’s assessment, Morris experienced marked limitation

in a number of areas, including the abilities t o :

• maintain attention and concentration;

• work in coordination with or proximity to others without being distracted by them;

13 • complete a normal workday and workweek without interruptions and to perform at a consistent pace;

• interact appropriately with the general public;

• accept instructions and respond appropriately to criticism from supervisors;

• get along with coworkers;

• maintain socially appropriate behavior; and

• respond appropriately to changes in work setting.

Id. Dr. Latham also concluded that Morris was moderately limited

in a number of areas, including the abilities t o :

• understand, remember, and carry out detailed instructions;

• perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances;

• sustain an ordinary routine without special supervision;

• make simple work-related decisions;

• ask simple questions or request assistance; and

• set realistic goals or make plans independently of others.

Id. This description of limitations, Dr. Latham noted, had been

true throughout Morris’s lifetime, and was likely to be

permanent. Id. at 585.

At the hearing before the ALJ, Morris testified that he was

still taking Zoloft to treat his depression. Id. at 2 4 . Though

the Zoloft “tends to take the edge off a little bit,” Morris

testified, “it’s still there,” just “not as acute.” Id. He also

testified that other than this medication, “the occasional visit

14 with Dr. Rockhill,” and a visit with Dr. Latham “every three

months,” he was not receiving mental health treatment. Id. at

21-22.

Morris expressed skepticism about his ability to maintain a

job. He speculated that he would try to keep a job “as long as

possible,” but “if there’s going to be somebody there constantly

telling m e , well, you’ve missed a spot or you need to do this

again and this, this o r , I’d just get confused and I’d probably

end up quitting.” Id. at 1 9 . He thought that he “wouldn’t do

real good in a job situation where I had to work with others,”

because he is “extremely nervous” around new people. Id. at 2 2 .

In such situations, Morris testified, he wants to “go someplace

safe. . . . If somebody says something or whatnot, I give them a

sarcastic jab to get them away from m e . And if all of that

fails, I just stop going to work.” Id. at 22-23, see also id. at

25. Morris’s father (with whom Morris resides) corroborated this

testimony, stating that Morris “would remove himself from any

situation that required working with others.” Id. at 288.

Morris’s father further testified that when Morris is around

people he doesn’t know, he acts as “though they’re not there,

non-existent.” Id. at 3 0 . When visitors come to the house,

Morris will greet them and “asks how do you d o , shakes hands and

15 so forth,” but “just as soon as he can, he’ll go upstairs to his

room.” Id.

Morris also testified to nervousness in unfamiliar places,

stating that “if I’m able t o , I just get up and leave the area.

Either that, or I go find a corner to hide in.” Id. at 2 4 . He

testified that when he goes out in public, he usually does so

with a family member, and in stores, “I try to avoid contact with

anybody. I pay for the groceries and then leave.” Id. at 2 5 .

Morris’s father testified, however, that Morris is “friendly with

the clerks at the store when we go to the grocery store,” id. at

29-30, and also submitted a function report stating that Morris

talks by phone with others with whom he was incarcerated about

once a week, id. at 287.

Morris further testified that during the day, he typically

does “[o]dd jobs around the house.” Id. at 2 5 . According to his

father, Morris does chores for four to eight hours daily,

including yard work, property repairs, electrical work, and

plumbing, as well as more mundane tasks including cleaning,

laundry, taking out the trash, and preparing dinner. Id. at 284-

85. For recreation, Morris plays computer games and cards, and

walks around the property. Id. He takes his meals in his room,

and generally does not go out to eat because it’s not a

“comfortable situation”; the last time he went out he “got really

16 nervous and kept asking if we could leave.” Id. at 25-26; see

also id. at 29 (testimony of George Morris). Despite his

nervousness, Morris enjoys “taking care of dogs and cats.” Id.

at 2 5 ; see also id. at 297 (“He would spend 24 hrs a day taking

care of the cats if he didn’t have other things to d o . ” ) . He

takes care of eight cats and five dogs at home, and volunteers at

a local dog kennel for half days two to three days per week. Id.

at 2 7 . At the kennel, he doesn’t work with people other than his

supervisor, and never has to be around people who are coming to

adopt a pet. Id. Nonetheless, Morris is friendly with his

supervisor at the kennel. Id. at 2 9 .

The ALJ later issued a written decision finding that Morris

suffers from a personality disorder, dysthymic disorder, and an

anxiety disorder. Id. at 7 6 . The ALJ further found Morris’s

personality disorder severe enough from December 2 7 , 1983 to

January 1 , 2001, to render him disabled as defined by the Social

Security Act. Id. at 76-77. The ALJ found, however, that this

disability ended as of January 2 , 2001, due to medical

improvement. Id. at 7 7 . In reaching this determination, the ALJ

relied in principal part upon the residual functional capacity

assessment performed by Dr. Coyle, which the ALJ found to be

consistent with Morris’s activities of daily living. Id. at 79-

81. The ALJ gave “little weight” to the assessment performed by

17 Dr. Latham, and “moderate weight” to Dr. Rockhill’s opinion. Id.

at 8 0 . The ALJ also gave “little weight” to the New Hampshire

Department of Health and Human Services’s determination that

Morris was eligible for Aid to the Permanently and Totally

Disabled. Id. at 8 1 .

The ALJ’s decision was selected for review by the Decision

Review Board (“DRB”). See

et seq. The DRB,

however, failed to complete its review during 90-day period

allotted by

(a)(2), making the ALJ’s decision

the final decision of the SSA. Admin. R. at 1 . Morris filed

this appeal on May 1 6 , 2011.

III. Analysis

A five-step process is used to evaluate an application for

social security benefits.

(a)(4),

416.920(a)(4). The claimant bears the burden, through the first

four steps, of proving that he is disabled, i.e., that (1) he is

not engaged in substantial gainful activity; (2) he has a severe

impairment; (3) the impairment meets or equals a specific

impairment listed in the Social Security regulations; and (4) the

impairment prevents or prevented him from performing past

relevant work. Id.; see Freeman v . Barnhart,

(1st Cir. 2001). At the fifth step, the SSA bears the burden of

showing that the claimant has the residual functional capacity to

18 perform other work that may exist in the national economy.

Freeman,

; see

(a)(4)(v),

416.920(a)(4)(v). “[A]ll five steps are not applied to every

applicant, as the determination may be concluded at any step

along the process.” Freeman,

.

In the present case, the ALJ concluded that as of January 2 ,

2001, Morris’s impairments had improved to the point where they

no longer met or medically equaled the impairments listed in the

Social Security regulations. Admin. R. at 7 7 . Morris challenges

that conclusion, arguing that the ALJ erred in (a) not according

“full weight” to the findings of Virginia Rockhill, Ph.D., who

evaluated Morris on several occasions, and Bruce Latham, D.O.,

Morris’s treating physician; (b) failing to account for the

minimizing effects of his confinement on his disorders; and (c)

not according any weight to the New Hampshire Department of

Health and Human Services’s (“DHHS”) determination that Morris is

disabled and eligible for Aid to the Permanently and Totally

Disabled (“APTD”). After careful review of the record and the

parties’ submissions, the court rejects the majority of these

assignments of error. The ALJ discounted Dr. Latham’s opinion,

however, for improper reasons. The court therefore reverses the

ALJ’s decision and remands the case for further proceedings

before the ALJ.

19 A. Drs. Rockhill’s and Latham’s findings

Morris first argues that the ALJ erred in not according

“full weight” to the opinions of Drs. Rockhill and Latham. He

argues that “the ALJ glossed over the fact that Dr. Rockhill

evaluated Mr. Morris three times over roughly two years,” failed

to note the “extensive limitations” set forth in Dr. Rockhill’s

December 2007 and November 2009 reports, and improperly

discounted Dr. Rockhill’s opinion based upon Morris’s own

testimony about his daily and weekly activities. Morris further

argues that the ALJ, instead of giving Dr. Latham’s residual

functional capacity assessment little weight because its basis

was not clear, should have made further inquiry of Dr. Latham.

The court agrees that the ALJ gave insufficient reasons for

discounting Dr. Latham’s opinion, and that this error warrants

remand. Morris’s other assignments of error, however, do not.

The court considers the ALJ’s dismissal of Dr. Latham’s

assessment first. As detailed above, Dr. Latham opined that

Morris experienced marked limitation in a great number of

abilities, and moderate limitation in several others, as a result

of his depression and anxiety. See Admin. R. at 581-85. In her

order, the ALJ assigned “little weight” to Dr. Latham’s opinion,

stating that “[t]here is no indication that Dr. Latham was aware

20 of the definitions for these ratings and he did not provide any

diagnosis to go along with this opinion.”

at 8 0 .

The ALJ’s statement that Dr. Latham “did not provide any

diagnosis” with his opinion is plainly incorrect, as the

Commissioner concedes. In his treatment records–-which the ALJ

actually cited in her order, see id.–-Dr. Latham repeatedly

diagnosed Morris with depression. See, e.g., id. at 523-24.

Insofar as the ALJ’s order suggests that this was her reason for

assigning so little weight to the opinion of Dr. Latham, Morris’s

treating physician, this alone warrants remand. See, e.g.,

Mushero v . Astrue,

, 695 n.1 (10th Cir. 2010)

(“[T]he ALJ should ensure that any reasons for discounting the

treating psychiatrist’s opinion are supported in the record.”);

Mills v . Astrue,

(11th Cir. 2007) (if ALJ

does not give treating doctor’s opinion substantial weight, “he

must show good cause by articulating reasons that are supported

by the evidence”).

The ALJ’s other reason for discounting Dr. Latham’s opinion,

that there was “no indication” that he “was aware of the

definitions” of various ratings, is also inadequate. The ALJ was

correct that the record contains no such indication. But it also

contains no indication that Dr. Latham was not aware of those

definitions. In an evidentiary vacuum such as this, the ALJ

21 could not simply draw the conclusion that Dr. Latham did not know

of or understand what the various ratings meant.7 If the ALJ

believed that Dr. Latham’s awareness of the definitions of the

ratings was material to the credibility of his assessment, it was

incumbent upon her to further develop the record.

As the Court of Appeals has explained, “[b]ecause Social

Security proceedings are not adversarial in nature, the [SSA has]

a duty to develop an adequate record from which a reasonable

conclusion can be drawn.” Heggarty v . Sullivan,

(1st Cir. 1991) (internal citation and quotation marks

omitted). “This duty to develop the record is heightened where

the claimant is not represented by counsel, but applies in all

cases.” Brunel v . Barnhart, N o . 00-cv-402,

, *8

(D.N.H. Jan. 7 , 2002) (citing

(d)). The duty

is also heightened “if there is a gap in the record and the ALJ

could have filled in that gap without undue effort.” Price v .

Astrue,

(citing Currier v . Sec’y of Health,

Educ. & Welfare,

(1st Cir. 1980)). “If the ALJ

fails to fill those evidentiary gaps, and if they prejudice

7 Notably, the record contains no indication that state agency psychiatric consultant J. Coyle, PhD “was aware of the definitions” of the ratings for the residual functional capacity assessment he performed of Morris, but the ALJ did not draw any negative conclusion regarding Dr. Coyle’s knowledge of those definitions (or lack thereof).

22 plaintiff’s claim, remand is appropriate.” Mandziej v . Chater,

(D.N.H. 1996).

This gap in the evidence may well have prejudiced Morris’s

claim. “Prejudice is demonstrated by showing that the additional

evidence might have led to a different decision.” Alker v .

Astrue,

(citation and internal quotations

omitted). Here, the evidentiary gap caused the ALJ to discount

the opinion of Morris’s treating physician. Had the ALJ given

full weight to that opinion, she might have accepted Dr. Latham’s

assessment of Morris’s functional limitations rather than the

comparatively less severe assessment of Dr. Coyle. And had she

done s o , she may well have arrived at a different conclusion

regarding Morris’s disability. Closing that gap, moreover, would

not have been particularly difficult; it would have entailed no

more than a simple inquiry to Dr. Latham. Remand is necessary so

that inquiry can be made.8

The ALJ did not err, however, in her conclusions as to Dr.

Rockhill’s opinions. That the ALJ “glossed over the fact that

Dr. Rockhill evaluated Mr. Morris three times over roughly two

years” has no relevance. The ALJ expressly cited each of those

8 Because the court is remanding for further consideration of Dr. Latham’s opinion, it does not address Morris’s argument that the court’s hypothetical question to the vocational expert who testified at the hearing was improper because it failed to take Dr. Latham’s opinion into account.

23 opinions in her order, see Admin. R. at 79-81; “[a]n ALJ is not

required to expressly refer to each document in the record,

piece-by-piece.” Rodriguez v . Sec’y of HHS,

,

(1st Cir. 1990). The ALJ was also warranted in

rejecting the limitations set forth in Dr. Rockhill’s various

reports, insofar as those limitations were inconsistent with

Morris’s own testimony about his daily and weekly activities.

See, e.g., Forrester v . Comm’r of Soc. Sec.,

(11th Cir. 2012) (“[T]he ALJ did not need to give a treating

physician’s opinion considerable weight if evidence of the

claimant’s daily activities contradicted the opinion.”); Ellis v .

Comm’r of Soc. Sec.,

(6th Cir. 2003)

(ALJ “may reject the opinion of a treating physician” if

contradicted by the claimant’s own testimony).

B. The ALJ’s consideration of Morris’s incarceration

Morris also argues that the ALJ erred in failing to take

into account the minimizing effect his confinement might have had

on the symptoms of his disorders in 2001, the date his condition

supposedly improved. Morris points out that the SSA’s listings

caution about the “[e]ffects of structured settings,” and note:

Particularly in cases involving chronic mental disorders, overt symptomatology may be controlled or attenuated by psychosocial factors such as placement in a hospital, halfway house, board and care facility, or other environment that provides similar structure. . . . Such

24 settings may greatly reduce the mental demands placed on [a person]. With lowered mental demands, overt symptoms and signs of the underlying mental disorder may be minimized.

20 C.F.R. P t . 404, Subpt. P, App. 1 , § 12.00(F). Because of this

effect, the listing cautions that the ALJ “must consider [the

claimant’s] ability to function outside of such highly structured

settings.” Id.

The court has no doubt that a prison environment can provide

the type of highly structured setting described in the listings.

See, e.g., Clester v . Comm’r of Soc. Sec., N o . 09-cv-765,

, *7 (Aug. 3 , 2010) (“[I]mprisonment also imposes a highly

structured setting with little interaction with a limited set of

individuals, a highly controlled schedule, and incentives for

‘good’ behavior. It imposes little or nothing comparable to the

performance demands that are imposed in daily life, much less in

a competitive work setting.”). The ALJ did not fail to consider

Morris’s ability to function outside of this setting, though. To

the contrary, the ALJ fully considered Morris’s medical records

postdating his release, as well as Morris’s activities of daily

living after his release, in concluding that Morris’s condition

had improved to a point where he was no longer disabled. See

Admin. R. at 79-81.

In light of the necessity of remand to the ALJ for the

reasons already discussed, a lengthy exposition of the evidence

25 supporting the ALJ’s conclusion may be largely academic. Insofar

as a brief discussion might be useful to the ALJ and the parties

on remand, however, the court provides one here. Among other

things, the ALJ noted that Dr. Rockhill appraised Morris’s

ability to function after his release as “limited, but not

precluded,” and that both she and Dr. Latham had described

Morris’s abilities to perform work-related tasks without simple

limitations.

at 7 9 . The ALJ further noted that after his

release, Morris indicated an ability “to deal with his mood

disorder with the help of medication,”

and took part in a

variety of activities around the house, including cooking,

cleaning, managing his finances, driving, shopping, laundering,

e-mailing with former inmates, caring for animals, and doing odd

jobs around the house,

at 8 0 . In addition, the ALJ remarked,

Morris volunteered at a local animal shelter and was friendly

with clerks at stores. Id. at 80-81.

All this evidence supports the ALJ’s conclusion that Morris

was able to achieve the same level of functionality outside the

prison’s “highly structured setting” as during his incarceration.

To the extent there is conflicting evidence in the administrative

record, it was well within the ALJ’s province to discount that

evidence in favor of the evidence just recited. See Rodriguez,

(resolution of conflicts in the evidence is a

26 question for the ALJ, not the reviewing district or appellate

court). Similarly, to the extent that Morris argues that his

medical records from the period of his incarceration support a

finding of disability, the record contains more than adequate

evidence from that period to support the ALJ’s conclusion that

Morris’s condition improved over the course of his incarceration

such that he was no longer disabled. As recited in the ALJ’s

decision, and as summarized above, see supra Part I I , Morris’s

medical records indicate that he complained of depression at one

point while incarcerated, but that depression later subsided with

treatment and was repeatedly characterized as “in remission” from

the early 2000’s until the date of his release.9

C. DHHS’s determination of APTD eligibility

Morris finally argues that the ALJ erred in “not putting any

weight on” the DHHS’s determination that Morris was eligible to

receive APTD benefits. The ALJ concluded that this opinion was

entitled to “little weight,” noting that “[a] determination by

another government agency that a claimant is disabled is not

binding on the Commissioner.” Admin. R. at 81 (citing

, 416.904). The ALJ further noted that it was

9 Morris also argues that “[t]here is no evidence that [he] would have been able to work during his continued confinement.” As previously noted, however, Morris in fact had various jobs during his time in prison. See Admin. R. at 1 8 , 378, 502-03.

27 “unclear” what evidence the DHHS relied upon in making this

determination, and that “[i]n the absence of this information,”

DHHS’s opinion was entitled to “little weight.”

Morris concedes that the ALJ was not bound to accept the

DHHS’s determination of disability. He argues, however, that

“evidence of a disability determination by another governmental

or nongovernmental agency cannot be ignored and must be

considered.” Social Security Ruling 06-03p, Titles II and XVI:

Considering Opinions and Other Evidence from Sources Who Are Not

“Acceptable Medical Sources” in Disability Claims; Considering

Decisions on Disability by Other Governmental and Nongovernmental

Agencies,

, at *6 (S.S.A. 2006). That is not what

occurred here, however; the ALJ did not ignore DHHS’s decision.

The ALJ considered that decision in the context of the entire

record, and concluded that in context, that decision was not

entitled to substantial weight. For this reason, Bickford v .

Barnhart,

(D. M e . 2002), upon which Morris

relies, is unhelpful to him. There, the court remanded to the

ALJ specifically because the ALJ’s opinion did “not mention the

Veterans Administration [decision as to disability] at all.”

(emphasis added).

Morris also argues that the ALJ erred in noting that the

factual underpinnings of DHHS’s decision were “unclear,”

28 asserting that “[t]he Psychiatric Evaluation solicited by the

DHHS . . . is part of the administrative record and is referenced

extensively in the careful analysis and determination of the

DHHS.” Although that evaluation is indeed a part of the

administrative record, it is hardly true that it is “referenced

extensively” in DHHS’s analysis. To be sure, the evaluation is

quoted extensively in that analysis. But it is not referenced a

single time. Indeed, had Morris’s brief not communicated the

relationship between the two documents, this court itself would

not have appreciated i t , and the ALJ certainly did not err in

failing to do so without any such guidance.10 In any event, on

remand, Morris can make that relationship clear to the ALJ.

IV. Conclusion

Pursuant to sentence four of

(g), Morris’s

motion to reverse and remand the Commissioner’s decision11 is

GRANTED. The Commissioner’s motion to affirm the decision12 is

10 Even if the ALJ should have perceived that relationship, moreover, it is difficult to see how this oversight could possibly have affected the ALJ’s analysis, when the ALJ expressly took the evaluation upon which the DHHS’s determination relied into account in her opinion. See Admin. R. at 80-81 (citing Exh. 15F). 11 Document n o . 1 2 . 12 Document n o . 1 5 .

29 DENIED. The Clerk of Court is directed to enter judgment in

accordance with this order and close the case.

SO ORDERED.

Joseph N_._ _Laplante ___ ______________ United States District Judge

Dated: September 27, 2012

cc: Ruth Dorothea Heintz, Esq. Gretchen Leah Witt, Esq. T . David Plourde, Esq.

30