UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas J. Hainey, Claimant

v. Civil No. 14-cv-144-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Thomas Hainey, moves to reverse or vacate the Acting

Commissioner’s decision denying his applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”) Benefits under the Social Security Act,

and 1381-1383c (the “Act”). The Acting Commissioner objects and

moves for an order affirming her decision.

For the reasons discussed below, claimant’s motion is

granted, and the Acting Commissioner’s motion is denied.

Factual Background

I. Procedural History.

In 2009, claimant filed applications for DIB and SSI

benefits, alleging that he had been unable to work since July 18, 2007. In May of 2011, an Administrative Law Judge (“ALJ”) denied

those applications. But, upon review, the Decision Review Board

remanded the case for further consideration. Accordingly, in

August of 2012, claimant, his attorney, and a vocational expert

appeared before an ALJ, who considered claimant’s applications de

novo. Three months later, on November 30, 2012, the ALJ issued

his written decision, again concluding that claimant was not

disabled, as that term is defined in the Act, at any time prior

to the date of his decision.

The Appeals Council denied claimant’s request for review,

making the ALJ’s denial of claimant’s applications the final

decision of the Acting Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by substantial

evidence. He then filed a “Motion for an Order Reversing the ALJ

Decision” (document no. 9). In response, the Acting Commissioner

filed a “Motion for an Order Affirming the Decision of the

Commissioner” (document no. 10). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 11), need not be

2 recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated Edison

Co. v. NLRB,

(1938). It is something less than

a preponderance of the evidence, so the possibility of drawing

two inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by

substantial evidence. Consolo v. Federal Maritime Comm’n.,

(1966). See also Richardson v. Perales,

(1971).

3 II. The Parties’ Respective Burdens.

An individual seeking DIB and/or SSI benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health & Human

Services,

(1st Cir. 1991). To satisfy that burden,

the claimant must prove, by a preponderance of the evidence, that

his impairment prevents him from performing his former type of

work. See Gray v. Heckler,

(1st Cir. 1985);

Paone v. Schweiker,

(D. Mass. 1982). If

the claimant demonstrates an inability to perform his previous

work, the burden shifts to the Commissioner to show that there

are other jobs in the national economy that he can perform, in

light of his age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

4 In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

5 step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: July 18, 2007. Admin.

Rec. at 24. Next, he concluded that claimant suffers from the

following medically determinable impairments: “cognitive disorder

NOS; adjustment disorder; obesity; and right shoulder (torn

rotator cuff, status post arthroscopy).”

But, the ALJ

determined that those impairments, regardless of whether they

were considered alone or in combination, did not significantly

limit claimant’s ability to perform basic work-related activities

for 12 consecutive months. Accordingly, at step two of the

analysis, the ALJ concluded that claimant’s impairments are not

“severe” and, therefore, he is not disabled.

.

Nevertheless, the ALJ continued with the sequential analysis

and concluded, in the alternative, that even if one were to

assume that claimant’s impairments are severe, they do not meet

or medically equal any of the impairments listed in the

regulations.

. Continuing with the sequential

analysis, the ALJ next concluded that claimant retained the

residual functional capacity (“RFC”) to perform the exertional

6 demands of medium work.1 He noted, however, that claimant can

perform overhead reaching only occasionally and is limited to

short and simple tasks in a routine work environment.

at 28-

32. In light of those restrictions, the ALJ concluded that

claimant was not capable of returning to any of his prior jobs.

.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the testimony of a vocational expert, the ALJ concluded that,

notwithstanding claimant’s limitations, he “is capable of making

a successful adjustment to other work that exists in significant

numbers in the national economy.”

. Consequently, the

ALJ concluded that claimant was not “disabled,” as that term is

defined in the Act, through the date of his decision (November

30, 2012).

1 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

7 Discussion

Claimant challenges the ALJ’s decision on two grounds,

asserting that he erred: (1) by failing to properly weigh and

consider opinion evidence from various medical professionals; and

(2) by incorrectly determining his residual functional capacity.

Because the court agrees that the ALJ’s decision to substantially

discount critical aspects of the opinions rendered by examining

medical sources was inadequately supported, it need only address

that claim.

Claimant asserts that the ALJ failed to give sufficient

weight to the opinions of various medical professionals who

examined him. In particular, he focuses on the opinions of Dr.

Darlene Gustavson, a licensed psychologist, who conducted a

consultative examination of claimant in July of 2009 (Admin. Rec.

at 343-47) and Dr. Janet Levenson, a licensed psychologist who

conducted a consultative examination approximately three years

later, in April of 2012 (id. at 468-72).

The substance of claimant’s history as provided to each

examining medical source was consistent. He is financially

dependent upon his sister and lives in a rooming house for which

she pays. He has no health insurance - hence his infrequent

visits to medical professionals and sparse medical records.

8 According to Dr. Gustavson, claimant “is currently treated via a

nurse at the homeless shelter who only allows each patient to

discuss two issues at each session. He has not yet discussed his

history of alcohol abuse or his liver damage and memory

problems.” Admin. Rec. at 344. With regard to claimant’s

cognitive (memory) impairment, Dr. Levenson noted the following:

[Mr. Hainey] claims that in 2007, co-workers began commenting that he was getting Alzheimers. He was fired in July, 2007 as he couldn’t do [the] job anymore due to forgetfulness. After leaving the Radisson a former employer gave him a job at the Hanover Street Chop House. He lasted one month, as he couldn’t remember how to make dishes without writing them down and referencing them which slowed his production. He then worked for 1 week as a breakfast cook at Belmont Hall. Again, he was forgetful, couldn’t keep up with his duties and burned trays of bacon. This was two years ago and he hasn’t worked since.

Id. at 469. See also id. at 344 (Dr. Gustavson’s discussion of

the impact of claimant’s cognitive impairment on his ability to

maintain employment).

Also of note is the fact that, in preparation for his

meeting with Doctor Gustavson, claimant “wrote down a list of

what he forgets, but forgot the list at his residence,” id. at

343, and he initially showed up for his appointment with Dr.

Levenson on the wrong day, id. at 469. There is no evidence of

malingering and claimant seems genuinely desirous of resolving

9 (if possible) his memory issues and securing gainful employment.

See, e.g., Id. at 343, 472.

Both Dr. Levenson and Dr. Gustavson administered a “mini

mental status examination” (also known as an “MMSE”) and drew

substantially similar conclusions. Dr. Levenson observed that,

“Claimant reports impairment in his ability to encode and store

new information. This was consistent with his performance on the

memory tasks of the MMSE where he needed two trials in order to

properly encode three unrelated words and after a brief delay he

did not recall any of them correctly. He did not read through

the BDI instructions as had been expressly instructed.” Admin.

Rec. at 471.2

2 As support for her conclusions, Dr. Levenson noted the following:

On the first trial of immediate recall of three words, Jim paused before starting his response. He provided one correct response and two responses that were incorrect but in the same functional category as the target word. He provided the fruit “orange” in place of “apple,” and could not decide if the furniture word was “chair or table.” On second repetition of the target words he got 3/3. He commented that he had become nervous when he knew I was testing his memory. He aborted the serial 7’s after providing one correct and one incorrect subtraction, despite counting on his fingers. Serial 3’s was presented which he performed with one error. Confrontation naming and repetition performed correctly. On delayed recall of the three words he offered three words correct to the functional categories but not the right words. He again offered

10 In their written reports, both Dr. Levenson and Dr.

Gustavson concluded that claimant’s cognitive functioning is

substantially impaired. Dr. Levenson opined that claimant

suffers from a “marked” impairment in his ability to perform

work-related tasks (concentration, persistence, and pace) and a

“moderate” impairment in his ability to tolerate work-related

stress. Admin. Rec. at 471. Similarly, Dr. Gustavson opined

that claimant’s “cognitive functioning is significantly impaired

regarding attention, concentration and general slow processing.”

Id. at 345. She also opined that “claimant is not able to

understand and remember instructions,” and is unable “to sustain

attention and to complete tasks.” Id. at 346. Finally, Dr.

Gustavson concluded that claimant is “not able to tolerate

stresses common to a work environment which includes [the]

ability to make decisions.” Id.

In 2009, William Jamieson, Ph.D., completed a Mental

Residual Functional Capacity Assessment, in which he concluded

that claimant was “markedly limited” in his ability to maintain

attention and concentration for extended periods, as well in his

ability to perform activities within a schedule and maintain

“orange” and “chair,” for the coin he said “it was a nickel or dime.” “Penny” was not prompted when correctly identifying a “pen” on the subsequent task.

Admin. Rec. at 470.

11 regular attendance. Admin. Rec. at 363. He concluded his

assessment with the following:

Greatest weight is given to recent psych. CE. This evaluation describes significant functional impairments. Allegations are credible.

Due to cognitive impairments, the claimant is not able to maintain attention and persistence to task over extended periods. He would show a greater than acceptable number of interruptions in a normal workday and work week.

Id. at 365. Subsequently, Dr. Jamieson completed a Psychiatric

Review Technique, in which he concluded that claimant suffers

from an organic mental disorder (memory impairment) which renders

claimant “markedly limited” in his ability to maintain

concentration, persistence, or pace. Id. at 350 and 359.

In support of his conclusion that claimant’s cognitive

impairment is not disabling, the ALJ noted:

The claimant’s medical records also show limited treatment for mental health symptoms. Recent mental health notes from his primary care provider indicate that he should consider vocational rehabilitation, evidencing that he does not believe the claimant is disabled. . . . Although he recently had an initial evaluation at Bedford Counseling in Spring 2012, there are not treatment records in the evidence of record beyond the initial intake. There also are no records showing treatment or reported psychological symptoms during 2007, 2008, or 2009. At his consultative exam in May 2012, he is noted to have normal speech, appropriate affect, no signs or symptoms of psychosis or formal thought disorder, and no history of psychiatric hospitalization. In addition, although the

12 claimant alleges memory impairment, he was able to participate in a 60-minute consultative exam without difficulty, and he reports that he is able to play chess, read and watch movies. His recent psychological evaluation notes possible cognitive impairment, but the examiner did not know the etiology, treatment or prognosis concerning his memory and there is little other diagnostic evidence in the record to support a finding of cognitive disorder.

Admin. Rec. 30 (emphasis supplied).3

It seems the ALJ may have misunderstood claimant’s current

activities of daily living because, in concluding that claimant’s

cognitive disorder is not debilitating he relied on incorrect or

no longer applicable facts. For example, in support of his

findings, the ALJ repeatedly noted that claimant likes to “play

chess, go for walks and even do karate.” Admin. Rec. at 30. See

also id. at 27 and 29. But, the record indicates that claimant

has not been able to perform karate or play chess for several

years. Id. at 47, 305, 346. And, when he goes for walks,

claimant testified (repeatedly and consistently) that he must be

careful to stick to his familiar path, otherwise he gets lost.

Id. at 49, 68, 308, 414. Moreover, while the ALJ noted that Dr.

3 The ALJ is referring to the examination and psychological evaluation prepared by Dr. Levenson. When asked when she believed claimant could be expected to return to work, Dr. Levenson said: “I don’t feel I can provide a response to [this question] as I do not know the etiology, treatment, or prognosis regarding his memory condition. This needs to be evaluated by qualified medical/neuropsychological professionals.” Admin. Rec. at 472. It appears that no such evaluation has been made.

13 Gustavson reported that claimant “was able to participate in a

60-minute interview without complaints,” id. at 354, the ALJ did

not mention Dr. Gustavson’s opinion that “his cognitive

functioning is significantly impaired regarding attention,

concentration and general slow processing,” id. at 345, which of

course puts the report in an entirely different context. And,

although the ALJ observed that claimant was able to follow

“simple 3 word written instructions” given to him by Dr.

Levenson, id. at 32 and 470, he did not discuss Dr. Levenson’s

observation that claimant was unable to properly follow 3-step

oral instructions. See Id. at 470.

Finally, while the ALJ correctly noted that claimant’s

medical records have few references to mental health treatment,

that is far more likely explained by claimant’s lack of health

insurance and limited access to health care than by the absence

of a treatable problem — a point that, if significant, should be

resolved upon a better-developed record before the ALJ. See

generally SSR 96-7p, Policy Interpretation Ruling Titles II and

XVI: Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual’s Statements,

at *8

(noting that the lack of medical treatment records may be

explained when “the individual may be unable to afford treatment

and may not have access to free or low-cost medical services”).

14 When claimant did undergo consultative evaluations by mental

health professionals, they consistently joined in concluding that

his organic mental health disorder substantially limits his

functioning (only non-examining sources questioned its impact on

claimant’s ability to maintain gainful employment).

This is, to be sure, a close and difficult case. The record

can be read to plausibly support the ALJ’s conclusion that

claimant’s physical impairments, while severe, do not preclude

gainful employment - in that regard, the ALJ’s decision is

thorough, comprehensive, and persuasive. But, claimant’s

undisputed history of having been repeatedly fired from various

food preparation jobs for failing to remember fairly simple

tasks, as well as the consistent opinions of the examining

medical professionals who tested his memory and cognitive

functioning, all strongly suggest that his cognitive impairment

is a substantial (if not disabling) one. See, e.g., Admin. Rec.

at 59 (vocational expert opined that if claimant is assumed to

have a “marked impairment in task performance,” that “would have

the effect of eliminating all jobs”). See also Id. at 471 (Dr.

Levenson opined that claimant does, indeed, have a “marked”

degree of functional loss in the realm of “task performance”) and

346 (Dr. Gustavson opined that claimant is “not able to sustain

attention [or] complete tasks”).

15 While it is the ALJ’s role to weigh the evidence and resolve

any conflicts, he must give a sound basis for his decisions -

particularly when (as in this case) he has chosen to ascribe more

weight to the opinions of non-treating, non-examining physicians

than those of examining medical professionals. See, e.g.,

(c)(1). Here, the ALJ’s written decision does

not adequately explain his decision to discount the opinions of

Dr. Gustavson and Dr. Levenson. And, while the ALJ is certainly

entitled to give significant weight to the opinions of non-

examining state agency physicians in appropriate circumstances,

in this case those opinions did not address claimant’s (seemingly

significant) cognitive limitations.4

Conclusion

For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document no. 9) is granted to the

extent he seeks a remand for further proceedings. The Acting

Commissioner’s motion to affirm her decision (document no. 10) is

denied.

4 The court notes that because Dr. Levenson examined claimant and issued her report in May of 2012, her opinions were not part of claimant’s medical records when they were provided to the state agency non-examining physicians. See Admin. Rec. at 397- 406. Consequently, the opinions of those state agency physicians (to which the ALJ afforded “significant weight”) are somewhat incomplete and less persuasive.

16 Pursuant to sentence four of

(g), the

decision of the ALJ dated November 30, 2012 is vacated and this

matter is hereby remanded for further proceedings consistent with

this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 5, 2014

cc: John A. Wolkowski, Esq. Robert J. Rabuck, Esq.

17