UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Beth Grenier

v. Civil No. 14-cv-153-PB Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Beth Grenier appeals the Commissioner’s denial of her

applications for a period of disability, disability insurance

benefits, and supplemental security income. She argues that the

Administrative Law Judge (the “ALJ”) impermissibly ignored a

medical opinion in the record finding that Grenier can work only

in supportive one-on-one settings. Because this opinion is

material to Grenier’s claim and is not cumulative of any other

evidence that the ALJ’s decision does consider, I conclude that

the ALJ was required to address it. His failure to do so,

therefore, was legal error that requires remand for further

administrative proceedings.

I. BACKGROUND

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

submitted a statement of stipulated facts (Doc. No. 13). See LR 9.1. Because this statement is part of the Court’s record, I

need not recount it here. Facts relevant to the disposition of

this matter are discussed as necessary below.

II. STANDARD OF REVIEW

(g) authorizes me to review the pleadings

submitted by the parties and the administrative record and enter

a judgment affirming, modifying, or reversing the “final

decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as long

as they are supported by substantial evidence.

Substantial

evidence to support factual findings exists “‘if a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adequate to support his conclusion.’” Irlanda

Ortiz v. Sec’y of Health & Human Servs.,

(1st

Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1981)). If the

substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a 2 different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v. Chater,

(1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of credibility and

for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III. ANALYSIS

Grenier, a 49-year-old woman, lives in New Hampshire and

used to work as a cook. She has a history of mental illness and

suffers from, among other conditions, depression and post-

traumatic stress disorder. In July 2012, she applied for

disability benefits on the basis of these conditions. The ALJ

denied her claim in November 2013.

Grenier now seeks remand of her denied claim because, she

argues, the ALJ impermissibly ignored a medical opinion in the

record concluding that she has an additional work limitation

that the ALJ did not acknowledge in his residual functional

capacity (“RFC”) finding. The Commissioner argues that the ALJ

did not have to specifically address this opinion because a 3 different medical opinion in the record, which the ALJ both

addressed and adopted in his decision, sufficiently considered

the unaddressed opinion.

At step two of the sequential process, the ALJ found that

Grenier suffers from two severe medically determinable

impairments: depression and post-traumatic stress disorder.

After concluding at step three that neither of these impairments

met or exceeded a listed impairment, the ALJ then found that

Grenier has the following RFC:

[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can do simple jobs with few social demands, persist at tasks within reasonable tolerances, maintain schedules and attendance without unreasonable interruption, and deal with simple and routine changes in the work setting.

Tr. at 16. Based on a vocational expert’s testimony that a

hypothetical claimant with this RFC could find work in the

national economy, the ALJ denied Grenier’s claim at step

five.

Grenier contends that her RFC should have included an

additional limitation restricting her to work in one-on-one

supportive settings. To support this position, Grenier points

to the opinion of Dr. Richard Root, who examined Grenier for a

4 consultative disability evaluation in December 2012. In

addition to examining her in person, Dr. Root also reviewed

Grenier’s clinical records from West Central Behavioral Health

and Dartmouth-Hitchcock Medical Center, where Grenier had

previously sought treatment for depression, anxiety, and

suicidal thoughts. Based on his examination of Grenier and

review of these records, Dr. Root concluded, in relevant part,

that “within a one-on-one supportive structured setting, Ms.

Grenier has adequate skills and capabilities to understand and

remember short and simple, as well as slightly complex

[instructions].” Tr. at 338 (emphasis added). Dr. Root further

concluded that, again “within a structured supportive one-on-one

setting, [Grenier] is able to concentrate and complete tasks

adequately.” Tr. at 338 (emphasis added).

Thus, Dr. Root’s opinion contains a work limitation that

the ALJ’s RFC does not reflect: that Grenier work in a one-on-

one setting. But although the record before the ALJ included

Dr. Root’s opinion, the ALJ’s decision mentions that opinion

only once, in passing and on a matter unrelated to the omitted

one-on-one constraint. See Tr. at 14. The ALJ’s failure to

directly address Dr. Root’s opinion, Grenier maintains, is legal

error that requires remand. 5

(c) requires the Commissioner to

evaluate “every medical opinion” that a claimant submits,

“[r]egardless of its source.”

(c).

Accordingly, an ALJ “must explain in the decision the weight

given to . . . any opinions from treating sources, nontreating

sources, and other nonexamining sources . . . .”

(e)(2)(ii). Ordinarily, therefore, an ALJ’s failure to

consider a medical opinion in the record at all is legal error

that requires remand. See Nguyen v. Chater,

(1st Cir. 1999). This general rule is not unwavering; thus, an

ALJ need not address specific evidence in the record that either

does not support the claimant’s position or simply repeats other

evidence that the ALJ’s decision does consider. See Lord v.

Apfel,

(D.N.H. 2000). But beyond these

limited exceptions, an ALJ’s decision “must take into account

whatever in the record fairly detracts from its weight.” Diaz

v. Sec’y of Health & Human Servs.,

(D.P.R.

1992) (quoting Universal Camera Corp. v. NLRB,

(1951)). Although an ALJ is free to independently evaluate the

weight of a particular medical opinion in the record that

supports a claimant’s position, an ALJ is not free to simply

ignore it. Charron v. Astrue,

. 6 Applying this standard here, I agree with Grenier and

conclude that the ALJ erred in ignoring Dr. Root’s opinion that

Grenier needed to work in a one-on-one structured setting. None

of the circumstances that sometimes justify an ALJ’s failure to

address a particular medical opinion in the record obtain here.

First, there is no question that the opinion would, if taken as

true, support Grenier’s position. Although the vocational

expert testified that a hypothetical claimant with the RFC found

by the ALJ could hold certain jobs in the national economy, he

also testified that adding a one-on-one work setting limitation

to that RFC would render the claimant unable to find work. See

Tr. at 70-72. And second, Dr. Root’s opinion is not cumulative

of any other evidence that the ALJ addresses in his decision.

The decision mentions Dr. Root only once, in passing and while

discussing Grenier’s substantial gainful activity, not her work

limitations.1 Tr. at 8. Otherwise, the decision makes no

mention, favorable or unfavorable, of either Dr. Root or the

1 The Commissioner points to this passing reference to show that the ALJ did consider Dr. Root’s opinion and therefore satisfied his obligation to consider all relevant evidence. Merely mentioning a relevant medical opinion in an unrelated context, however, cannot satisfy the requirement to address all relevant evidence. See Hynes v. Barnhart,

(D.N.H. 2004) (“The ALJ’s RFC determination must provide a clear explanation for its evidentiary basis and reasons for rejecting medical source opinions.”). 7 disputed one-on-one work setting limitation in general. Thus,

there is no evidence showing that the ALJ considered Grenier’s

asserted one-on-one work setting limitation at all. Especially

because that limitation would bolster Grenier’s claim if

accepted, the ALJ was required to address it. See Nguyen,

; Dube v. Astrue,

(D.N.H.

2011); Lord,

.

To justify the ALJ’s failure to address Dr. Root’s opinion,

the Commissioner points to the December 2012 opinion of Dr.

William Jamieson, a state agency psychologist who provided an

evaluation of Grenier’s work limitations due to mental illness

based on his review of Grenier’s medical records. Although Dr.

Jamieson neither examined nor treated Grenier in person, the ALJ

accorded Dr. Jamieson’s opinion substantial weight. Dr.

Jamieson concluded that Grenier,

in a simple jobe [sic] setting, with few social demands and reasonably supportive supervision . . . is able to maintain persistence to task within acceptable tolerances, and to maintain schedules and attendance without unreasonable interruption. She does have limitaitons [sic] in stress tolerance, and is able to deal with only simple and routine changes in the work setting.

Tr. at 86. After according Dr. Jamieson’s opinion substantial

weight, the ALJ effectively adopted this evaluation as his own

8 RFC finding. Compare Tr. at 16 with Tr. at 86.

Dr. Jamieson’s opinion, the Commissioner argues, excuses

the ALJ’s failure to directly address Dr. Root’s opinion for two

reasons. First, the Commissioner maintains that “Dr. Jamieson’s

findings are not facially different from Dr. Root’s

conclusions.” Doc. No. 12-1 at 5. But unlike Dr. Root’s

opinion, Dr. Jamieson’s opinion makes no mention of a one-on-one

work setting limitation, an additional constraint that could, if

valid, exclude Grenier from any jobs existing in significant

numbers in the national economy. See Tr. at 72. Consequently,

a material discrepancy exists between the opinions of Dr.

Jamieson and Dr. Root that renders the Commissioner’s argument

flatly incorrect.

Second, the Commissioner claims that Dr. Jamieson addressed

Dr. Root’s conclusion in his own opinion. Because the ALJ

accorded Dr. Jamieson’s opinion substantial weight and adopted

it as his own RFC finding, the Commissioner argues, the ALJ met

his duty to address Dr. Root’s opinion by incorporating Dr.

Jamieson’s findings, including Dr. Jamieson’s treatment of Dr.

Root’s conclusion, into his own decision. This argument fails,

however, because Dr. Jamieson’s report never actually evaluates

Dr. Root’s finding that Grenier is limited to one-on-one work 9 settings. See Tr. at 82-86. It is true that Dr. Jamieson’s

report summarizes Dr. Root’s findings, including his finding of

a one-on-one work setting limitation. Tr. at 82. But Dr.

Jamieson’s report does not evaluate the one-on-one work setting

finding by concluding, for instance, that it lacked substantial

evidence or that other evidence in Grenier’s medical records

contradicted it. See Tr. at 82-86. Instead, after

acknowledging Dr. Root’s finding of a one-on-one work setting

limitation, Dr. Jamieson’s report simply furnishes an RFC

finding that omits this limitation without explanation.2 See Tr.

at 86. Dr. Jamieson’s report itself, therefore, does not

address Dr. Root’s one-on-one work setting limitation finding in

a way that would satisfy an ALJ’s duty to consider all relevant

evidence. See Hynes v. Barnhart,

(D.N.H. 2004) (“[T]he ALJ must consider all relevant evidence in

the record, including the opinions and statements by all medical

sources . . . The ALJ’s RFC determination must provide a clear

2 To the extent Dr. Jamieson’s report evaluates Dr. Root’s opinion at all, it indicates that Dr. Jamieson places “increased weight to recent psych CE” – presumably, Dr. Root’s opinion issued earlier in December 2012. Tr. at 86. But if anything, Dr. Jamieson’s placement of “increased weight” with Dr. Root’s opinion only accentuated the need for him to address Dr. Root’s one-on-one work setting limitation finding and explain why he rejected it. 10 explanation for its evidentiary basis and reasons for rejecting

medical source opinions.”) (internal citation omitted). Thus,

assuming without deciding that an ALJ can ever meet the duty to

consider relevant evidence simply by adopting a separate opinion

in the record that itself addresses that evidence, Dr.

Jamieson’s opinion provided the ALJ with no basis to do so here.

Aside from these two arguments based on Dr. Jamieson’s

opinion, the Commissioner argues on the merits that Grenier

“points to no convincing evidence suggesting she was more

limited than Dr. Jamieson or the ALJ found.” Doc. No. 12-1 at

6. That may well be so, and the ALJ remains free on remand to

perform his own evaluation of Dr. Root’s one-on-one work setting

limitation finding. But governing regulations and binding

precedent within this Circuit preclude the ALJ from simply

ignoring that finding, as he did here. See Charron,

.

IV. CONCLUSION

The ALJ erred by failing to address Dr. Root’s opinion

regarding a one-on-one work setting limitation. Accordingly, I

grant Grenier’s motion to reverse the Commissioner’s decision

(Doc. No. 9) and deny the Commissioner’s motion to affirm her 11 decision (Doc. No. 12). Pursuant to sentence four of

(g), I remand the case to the Social Security

Administration for further proceedings consistent with this

decision.3

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 2, 2015

cc: Bennett B. Mortell, Esq. T. David Plourde, Esq.

3 Grenier raised other arguments in favor of remand. See Doc. No. 9-1. Because I grant remand on the basis of the ALJ’s failure to address Dr. Root’s opinion, however, I need not reach Grenier’s other arguments. 12