Arsenault v. SSA 12-CV-434-SM 1/16/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Keith Walter Arsenault, Claimant

v. Civil No. 12-cv-434-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,

Keith Arsenault, moves to reverse or vacate the Commissioner's

decision denying his application for Social Security Disability

Insurance Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under

Title XVI of the Act,

-1383c. The Commissioner

objects and moves for an order affirming her decision.

For the reasons discussed below, claimant's motion is

granted, and the Commissioner's motion is denied. Factual Background

I. Procedural History.

In 2010, claimant filed concurrent applications for Social

Security Disability Insurance Benefits and Supplemental Security

Income, alleging that he had been unable to work since September

21, 2009. That application was denied and claimant reguested a

hearing before an Administrative Law Judge ("ALJ").

In May of 2011, claimant, his attorney, and a vocational

expert appeared before an ALJ, who considered claimant's

application de novo. Three weeks later, the ALJ issued her

written decision, concluding that claimant retained the residual

functional capacity to perform the physical and mental demands of

a range of sedentary work, including his past relevant work as a

semiconductor assembler. In the alternative, the ALJ concluded

that there is a significant number of jobs in the national

economy that claimant can perform. Accordingly, the ALJ

determined that claimant was not disabled, as that term is

defined in the Act, at any time prior to the date of her

decision.

Claimant then sought review of the ALJ's decision by the

Appeals Council, which denied his reguest for review.

Accordingly, the ALJ's denial of claimant's application for

2 benefits 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 and seeking a judicial determination that

he is disabled within the meaning of the Act. Claimant then

filed a "Motion for Order Reversing Decision of the Commissioner"

(document no. 8). In response, the Commissioner filed a "Motion

for Order Affirming the Decision of the Commissioner" (document

no. 12). 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. 10), need not be

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

3 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 adeguate 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).

II. The Parties' Respective Burdens.

An individual seeking Social Security disability 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, 482

(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. See

Vazguez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

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.

5 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 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-

step seguential evaluation process described in

and 416.920. Accordingly, she first determined that

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: September 21, 2009.

Admin. Rec. at 21. Next, she concluded that claimant suffers

from the following severe impairments: "affective disorder,

obesity, status post fixation of the right ankle, status post

brain aneurysm, and obstructive sleep apnea." iId. at 22.

Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically egual one of the

6 impairments listed in Part 404, Subpart P, Appendix 1. I_d. at

22-23.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

a range of sedentary work.1 She noted, however, that claimant

"must avoid temperature extremes, wetness, hazards, and climbing

ladders, ropes, or scaffolds. He is limited to routine,

repetitive tasks in an environment where tasks are performed in a

solitary manner. He cannot have face-to-face interaction with

the public and can have only occasional, brief, superficial,

interactions with co-workers and supervisors." Admin. Rec. at

23. Despite those restrictions, however, the ALJ concluded that

claimant retained the ability to perform his past relevant work

as a semiconductor assembler.

.

2 "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 Finally, the ALJ also considered whether there were any

other jobs in the national economy that claimant might perform.

Relying upon the testimony of a vocational expert, the ALJ

concluded that, notwithstanding claimant's exertional and non-

exertional limitations, he "is capable of making a successful

adjustment to other work that exists in significant numbers in

the national economy." I_d. at 27. As examples of such jobs, the

ALJ identified document preparer, addresser, sorter, and

telemarketer. In light of those findings, the ALJ concluded that

claimant was not "disabled," as that term is defined in the Act,

at any time from his alleged onset date through the date of her

decision.

Discussion

Claimant challenges the ALJ's decision on three grounds,

asserting that she erred by: (1) failing to give appropriate

weight to the medical opinions of his treating sources;

(2) failing to properly assess his credibility; and (3) relying

upon flawed testimony by the vocational expert. Because the

court agrees that the ALJ did not adeguately explain her decision

to substantially discount the medical opinions of claimant's

treating/examining sources, it need only address that issue. There is, of course, no per se rule requiring the ALJ to

give greater weight to the opinions of a treating physician than

those of a consulting physician. See Arroyo v. Secretary of

Health & Human Services,

(1st Cir. 1991);

Tremblay v. Secretary of Health & Human Services,

(1st Cir. 1982). Nevertheless, in discussing the weight that

will be ascribed to the opinions of treating sources, the

pertinent regulations provide:

Generally, we give more weight to opinions from [the claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) . . . 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

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. .

In other words, giving "good reasons" for discounting the

opinions of treating sources means providing "specific reasons"

that will allow "subseguent reviewers [to know] . . . the weight

the adjudicator gave to the treating source's medical opinion and

the reasons for that weight." SSR 96-2P,

, at *5

(1996). Accordingly, when no such specific reasons are given,

remand is appropriate if the failure renders meaningful review

impossible. See Lord v. Apfel,

(D.N.H.

2000).

Here, the ALJ failed to adeguately explain her decision to

afford only "some weight" to the opinions from claimant's

treating/examining sources - Dr. Kolada (a clinical psychologist)

and Dr. Carvalho (claimant's treating psychiatrist) - noting only

that those opinions "appear to contain inconsistencies with the

medical record as well as their own treatment notes, and thus are

rendered less persuasive." Admin. Rec. at 24. Importantly, the

ALJ failed to discuss (or even identify) those apparent

inconsistencies. Plainly, more is reguired.

10 The substance of the opinions rendered by Dr. Kolada and Dr.

Carvalho is discussed at length in the parties' joint statement

of material facts (document no. 10, at 6-10) and need not be

recounted. It is sufficient to note that both doctors join in

opining that: (1) claimant is not a malingerer; (2) his GAF

scores suggest a serious level of impairment in his ability to

perform activities of daily living; (3) he is incapable of

working in even a low-stress environment; and (4) he has

"markedly limited" functioning (defined as limitations that

"effectively preclude the individual from performing the activity

in a meaningful manner") in numerous areas, including the ability

to perform tasks within a schedule, the ability to accept

instruction, the ability to work with others without distraction,

the ability to complete a normal workweek without an unreasonable

number and length of rest periods, and the ability to be punctual

within customary tolerance. See Admin. Rec. at 365-73 and 421-

28. Dr. Carvalho went even further, opining that claimant was

"markedly limited" in several other categories as well. iId. at

424-26.

If even a few of those medical opinions are credited as

true, claimant would certainly appear to be disabled. See, e.g..

Admin. Rec. at 64-65 (vocational expert's opinion that an

individual who could have only brief and superficial contact with

11 other employees, or an individual who had difficulty adhering to

a schedule and would be late to work at least two days a week,

would be incapable of substantial gainful employment).

Conseguently, the ALJ's failure to adeguately support her

decision to discount the professional opinions of those treating

sources cannot be said to have been harmless.

Finally, it probably bears noting that the ALJ afforded

"greater weight" to the opinions offered by the non-treating

psychologist. Dr. Edouard Carignan (an SSA consultant who, as the

parties note, gave no indication that he reviewed any of

claimant's treatment records. See Joint Statement of Facts at

11) . Several of Dr. Carignan's opinions are, however,

inconsistent with his own observations. For example, he noted

that claimant "misunderstood the direction in one portion of the

MMSE [Mini-mental state examination]," yet he concluded that

claimant would have "no difficulty" in understanding and

remembering instructions. Compare Admin. Rec. at 345 with Admin.

Rec. at 347. Similarly, Dr. Carignan's observations about

claimant feeling overwhelmed by caring for his nephews and his

obsessive cleaning and aggressive demeanor during those periods.

Admin. Rec. at 346, would seem to be at odds with his conclusion

12 that claimant has no difficulty in social functioning or in

managing stress. Admin. Rec. at 347.2

The salient point is this: the ALJ substantially discounted,

without adequate explanation, the medical opinions of two

examining/treating sources on grounds that those opinions

contained (undisclosed) inconsistencies with the medical record.

Yet, she embraced the opinion of a non-treating medical source

who did not review claimant's medical records and whose opinions

are demonstrably inconsistent with some of his own observations.

The ALJ's written decision simply provides inadequate explanation

for the reasons she credited (or discredited) those medical

opinions in the manner that she did.

Conclusion

For the foregoing reasons, the court necessarily concludes

that the ALJ's adverse disability determination is not supported

by substantial evidence. Claimant's motion to reverse the

decision of the Commissioner (document no. 8_) is, therefore,

granted to the extent he seeks a remand for further proceedings.

2 Although Dr. Carignan administered the mini-mental status exam (MMSE), he did not perform any psychological testing on claimant. Admin. Rec. at 345. Consequently, when the ALJ notes that she afforded his opinions greater weight because they were based on "testing and examination of the claimant," the court assumes that she is referring to claimant's performance on that MMSE.

13 The Commissioner's motion to affirm her decision (document no.

12) is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated June 16, 2011 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

January 16, 2014

cc: Eddy P. Pierre, Esq. Brenda M. G. Hallisey, Esq. Robert J. Rabuck, Esq.

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