UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sheila Ann Perry, Claimant

v. Case No. 14-cv-390-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner of Social Security, Respondent

O R D E R

Pursuant to

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

Sheila Ann Perry, moves to reverse (or remand for additional

hearing) the Acting Commissioner’s decision denying her

applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) 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 December of 2011, claimant filed applications for DIB and

SSI benefits, alleging that she had been unable to work since May 15, 2000, due to anxiety, depression, and a back condition.

Those applications were denied and claimant requested a hearing

before an Administrative Law Judge (“ALJ”).

In April of 2013, claimant, her attorney, her boyfriend, and

a vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. Later that month, the ALJ

issued her written decision, concluding that claimant was not

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

to the date of her decision. The Appeals Council denied

claimant’s request for review, so the ALJ’s denial of her

applications became the final decision of the 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. Claimant then filed a

“Motion for Order Reversing Decision of the Commissioner”

(document no. 9). In response, the Acting Commissioner filed a

“Motion for Order Affirming the Decision of the Commissioner”

(document no. 11). 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. 15), 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 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 her impairment

prevents her from performing her 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 her previous work,

the burden shifts to the Commissioner to show that there are

other jobs in the national economy that she can perform, in light

of her 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 her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] 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, she first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: May 15, 2000. Admin. Rec.

at 23. Next, she concluded that claimant suffers from several

“severe” impairments: “a pain disorder with chronic low back

pain, an anxiety disorder and a mood disorder.”

Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal any of the

impairments listed in Part 404, Subpart P, Appendix 1. Admin.

Rec. at 25. Claimant does not challenge any of those findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

a range of light work. She noted, however, that claimant:

is unable to climb ladders, ropes or scaffolds. She needs to avoid exposure to hazards. She is limited to performing uncomplicated tasks (defined as tasks that can be learned in 30 days or less) that are done in a solitary manner, but she can engage in incidental contact with the general public and she can manage brief and superficial interaction with co-workers. She can collaborate with supervisors on routine matters. In this context, she can concentrate and persist on tasks for 2 hour blocks of time throughout a normal workday and workweek.

6 Admin. Rec. at 26-27. In light of those restrictions, the ALJ

concluded that claimant was not capable of performing her past

relevant work as a machine operator.

.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. She presented

a hypothetical scenario to the vocational expert, involving a

worker with the above-listed limitations, and asked whether there

are jobs in the national economy that such an individual can

perform. The vocational expert opined that there are such jobs,

and gave several representative examples. Based upon that

testimony, the ALJ determined that, notwithstanding claimant’s

exertional and non-exertional limitations, she “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 her

decision (April 26, 2013).

Discussion

Claimant challenges the ALJ’s decision on four grounds,

asserting that she erred: (1) by affording inadequate weight to

the opinion of claimant’s treating psychiatrist; (2) by

improperly calculating claimant’s residual functional capacity;

7 (3) by improperly evaluating claimant’s subjective complaints of

pain and credibility; and (4) by failing to satisfy her burden at

step five of the sequential analysis. While claimant has

identified several weaknesses in the ALJ’s decision (which the

Commissioner characterizes as “harmless errors”), the court

focuses on the ALJ’s decision to discount the professional

opinions of claimant’s treating psychiatrist, Dr. Blencowe.

Because Dr. Blencowe had an ongoing treatment relationship

with claimant, her medical opinions are entitled to controlling

weight, provided they are “well-supported by medically acceptable

clinical and laboratory diagnostic techniques and [they are] not

inconsistent with the other substantial evidence in [claimant’s]

record.”

(c)(2). Those regulations go on to

provide that:

When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion.

(c)(2) (emphasis supplied). See also Social

Security Ruling, Policy Interpretation Ruling Titles II and XVI:

Giving Controlling Weight to Treating Source Medical Opinions,

SSR 96-2p,

(July 2, 1996) (when the ALJ renders an

adverse disability decision, his or her notice of decision “must

8 contain specific reasons for the weight given to the treating

source’s medical opinion, supported by the evidence in the case

record, and must be sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the

treating source’s medical opinion and the reasons for the

weight.”) (emphasis supplied).

Here, the ALJ declined to afford controlling weight to Dr.

Blencowe’s opinions.1 Her stated reasons for doing so -

inconsistencies in Dr. Blencowe’s report - are, however,

insufficient. As the Acting Commissioner herself acknowledges,

“Plaintiff contends that the inconsistencies the ALJ referenced

[in Dr. Blencowe’s report] were not inconsistencies at all, and

the Commissioner is inclined to agree.” Commissioner’s

memorandum (document no. 11-1) at 3. But, says the Commissioner:

The ALJ would have done better to highlight that Dr. Blencowe found that Plaintiff had an “unlimited or very good” ability to “maintain regular attendance and be punctual within customary tolerances,” while simultaneously noting that her impairments or treatment would cause her to miss more than four days of work per month. Because the opinion was actually internally

1 The ALJ also discounted the opinions of Janice Long, a licensed clinical social worker, and Dr. Janet Levinson, a consultative psychologist - both of whom examined and/or treated claimant. See Admin. Rec. at 28-29.

9 inconsistent, the ALJ is guilty only of reaching the right result by the wrong route.

The court disagrees.

That claimant has the ability to be punctual and regularly

show up for work does not address interruptions to her work

schedule caused by either the symptoms of her impairments or her

need to obtain medical and/or psychiatric treatment. Indeed,

while Dr. Blencowe opined that claimant had the ability to be

punctual, she also stated that, once at work, claimant would be

unable to “complete a normal workday and workweek without

interruptions from psychologically based symptoms.” Admin. Rec.

at 406. Without a more thorough discussion from the ALJ and

detailed explanation of her reasoning, it is difficult to

understand how Dr. Blencowe’s opinions can be characterized as

internally inconsistent.

As additional support for her decision to discount Dr.

Blencowe’s opinions, the ALJ stated that they were “inconsistent

with her clinical assessment in February 2013 when she observed

normal thought processes, normal speech, good memory and good

attention and concentration.” Id. at 28. Again, however, those

observations by Dr. Blencowe are not necessarily inconsistent

with her subsequent opinions about claimant’s ability to perform

10 work-related tasks. Dr. Blencowe’s opinions focused on

claimant’s allegedly disabling anxiety and motivation issues (as

well as symptoms resulting from those impairments) which, at

least in Dr. Blencowe’s opinion, “interfere with her being able

to process and focus on information” and, in turn, “make her

extremely anxious and tearful.” Id. at 407. Those allegedly

disabling impairments and symptoms are not inconsistent with

normal speech, good memory, and good attention.

Nevertheless, the Commissioner urges the court to affirm the

ALJ’s decision, arguing that a careful review of the record

reveals that there are other inconsistencies in Dr. Blencowe’s

opinions upon which the ALJ could have properly relied in

deciding to discount her opinions. In essence, the Commissioner

asserts that the ALJ’s errors were “harmless.” But, as this

court has previously recognized, it “cannot uphold the ALJ’s

decision based on rationales unarticulated in the record.”

Laplume v. Astrue,

at *6 n.20,

(July

24, 2009). It is the role of the ALJ, not the court, to identify

record support for her decision to discount the opinions of

claimant’s treating source, Dr. Blencowe. In a substantially

similar situation, this court (Laplante, J.) observed:

In the motion before this court, counsel for the Commissioner ably posits numerous reasons “[l]ending support to the ALJ’s disregard of Dr. Southworth’s

11 limitational assessments.” It is the responsibility of the ALJ to undertake that analysis in the first instance, not the court. The court recognizes that it is possible that on remand, the Commissioner may once again conclude that Dube was not disabled during the relevant time period. If he reaches such a conclusion, however, he must do so in a manner that demonstrates that all the relevant evidence in the record was considered in accordance with applicable legal standards.

Dube v. Astrue,

(D.N.H. 2011) (citations

omitted). See also Fortin v. Astrue,

, *8 (D.N.H.

2011) (“[I]t is not the role of the Commissioner or the court to

fashion a rationale under which the ALJ could have sustainably

rejected [claimant’s treating source’s] opinion.”) (citations

omitted). See generally Securities and Exchange Commission v.

Chenery Corp.,

(1947) (articulating “a simple

but fundamental rule of administrative law,” which provides that

“a reviewing court, in dealing with a determination or judgment

which an administrative agency alone is authorized to make, must

judge the propriety of such action solely by the grounds invoked

by the agency. If those grounds are inadequate or improper, the

court is powerless to affirm the administrative action by

substituting what it considers to be a more adequate or proper

basis. To do so would propel the court into the domain which

12 Congress has set aside exclusively for the administrative

agency.”).2

Stated simply, the ALJ did not adequately justify her

decision to discount the opinions of claimant’s treating source,

Dr. Blencowe. The ALJ did not give "good reasons" for

disregarding the opinions of a treating source as required by

regulation. Accordingly, this matter must be remanded. The ALJ

may reconsider the weight that should properly be ascribed to

those opinions, under applicable regulations.

Conclusion

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

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

extent she seeks a remand for further proceedings. The Acting

Commissioner’s motion to affirm her decision (document no. 11) is

denied.

2 As several courts have recognized, “an exception to the Chenery rule exists when a remand ‘will amount to no more than an empty exercise’ because, for example, ‘application of the correct legal standard could lead to only one conclusion.’” Clark v. Astrue,

, at *4 (D. Me. 2010) (quoting Ward v. Commissioner of Soc. Sec.,

(1st Cir. 2000)). Here, however, the outcome on remand is far from clear. Should the ALJ identify and rely upon supportable reasons for discounting Dr. Blencowe’s opinions, there is certainly substantial evidence in the record to support the conclusion that claimant is not disabled. If, however, Dr. Blencowe’s opinions are entitled to controlling weight, it would appear that claimant is likely disabled.

13 Pursuant to sentence four of

(g), the

decision of the ALJ dated April 26, 2013, 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

June 9, 2015

cc: Raymond J. Kelly, Esq. Michael T. McCormack, Esq.

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