UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tracy Lavoie

v. Civil No. 15-cv-209-PB Opinion No.

US Social Security Administration Acting Commissioner, Carolyn Colvin

MEMORANDUM AND ORDER

Tracy Lavoie is a forty-four year old woman with a history

of numerous impairments, including fibromyalgia, major

depressive disorder, anxiety, carpal tunnel syndrome, breathing-

related disorders, and headaches. Lavoie previously worked as a

bus driver, bus monitor, cashier, crossing guard, and

babysitter. Here, Lavoie challenges the Social Security

Administration’s denial of her claim for disability insurance

benefits. The Social Security Commissioner, in turn, seeks to

have the ruling affirmed.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 17).

Because that joint statement is part of the court’s record, I need not recount it here. I discuss facts relevant to the

disposition of this matter as necessary below.

II. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the administrative record and the pleadings submitted by

the parties, and to enter judgment affirming, modifying, or

reversing the final decision of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] 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). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence 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, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

2 are not conclusive, however, if the ALJ derived his findings 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

Lavoie filed for disability insurance benefits in June

2011, alleging disability as of June 10, 2011. Doc. No. 17 at

1. After her application was initially denied, a hearing was

held before an administrative law judge (“ALJ”) in April 2013.

The ALJ denied Lavoie’s application in July 2013.

After an appeal, however, the Appeals Council remanded Lavoie’s

case in November 2013.

The ALJ held a second hearing in

May 2014, but again denied Lavoie’s application.

In July

2014, after another appeal, the Appeals Council remanded the

matter a second time.

A different ALJ held another hearing

in December 2014, at which Lavoie, Lavoie’s husband, a medical

expert, and a vocational expert testified. The ALJ then issued

a written decision, concluding that Lavoie was not disabled.

3 Tr. at 60-77 (the ALJ’s decision).

In her written decision, the ALJ evaluated Lavoie’s claims

under the five step process outlined in

(a)(4). At step one, the ALJ found that Lavoie had not

engaged in substantial gainful activity since June 10, 2011, her

alleged onset date. Tr. at 62. The ALJ determined at step two

that Lavoie had severe impairments of fibromyalgia, diabetes

mellitus, left carpal tunnel syndrome, breathing-related

disorder, and headaches, but also concluded that Lavoie’s major

depressive disorder was not a severe impairment. Tr. at 62-63.

At step three, the ALJ found that Lavoie’s impairments did not

meet or equal any of the listed impairments. Tr. at 65-66.

Then, after calculating Lavoie’s residual functional capacity,

the ALJ determined at step five that Lavoie was able to perform

jobs that exist in significant numbers in the national economy.

Tr. at 66-67, 76-77. The ALJ therefore concluded that Lavoie

was not disabled. Tr. at 77.

In May 2015, the Appeals Council denied Lavoie’s request to

review the ALJ’s decision. Tr. at 1. As such, the ALJ’s

decision constitutes the Commissioner’s final decision, and this

matter is now ripe for judicial review.

Here, Lavoie argues that a remand is required for four

principal reasons: (1) the ALJ did not properly analyze her

4 depression, (2) the ALJ did not evaluate her fibromyalgia

appropriately, (3) the ALJ improperly weighed opinion evidence,

and (4) the ALJ’s step-five determination was not supported by

substantial evidence. Lavoie’s first argument is persuasive,

and warrants a remand.

Lavoie claims that the ALJ made two errors in analyzing her

depression. Lavoie argues that the ALJ erred in concluding, at

step two, that her depression was a non-severe impairment. She

further contends that the ALJ erred by failing to consider her

depression throughout the remainder of the sequential analytic

process. I take up each issue in turn.

A. Step Two Analysis Regarding Depression

In this case, the ALJ determined that Lavoie’s

fibromyalgia, diabetes mellitus, left carpal tunnel syndrome,

breathing-related disorder, and headaches were severe

impairments. Tr. at 62. The ALJ also determined, however, that

Lavoie’s depression was not a severe impairment, because it

imposed no more than minimal limitations on her ability to

perform basic work activities. Tr. at 63. Lavoie challenges

this conclusion.

Although the parties devote significant attention to this

issue, I need not decide whether the ALJ erred by concluding

that Lavoie’s depression was non-severe at step two. Instead,

5 “[t]his court has consistently held . . . that an error in

describing a given impairment as non-severe is harmless so long

as the ALJ found at least one severe impairment and progressed

to the next step of the sequential evaluation.” Chabot v. U.S.

Soc. Sec. Admin.,

; see SSR 85-28,

, at *3 (differentiating claims denied at step two from

those where “adjudication . . . continue[s] through the

sequential evaluation process”).

Had Lavoie’s claim rested solely on her depression, then

the ALJ arguably should have deemed that impairment severe, and

moved to the next step of the sequential evaluation process.

See Chabot,

. But where, as here, the ALJ

found other severe impairments, her decision to treat Lavoie’s

depression as non-severe was, at most, harmless error, so long

as she properly evaluated all of Lavoie’s impairments in

determining whether she was disabled. See Hines v. Astrue, No.

11-CV-184-PB,

, at *12-13 (D.N.H. Mar. 26, 2012).

The appropriate inquiry, then, is whether the ALJ adequately

addressed Lavoie’s depression after step two.

B. Consideration of Depression After Step Two

Lavoie argues that the ALJ’s alleged error at step two was

not harmless because, she claims, the ALJ failed to consider her

depression in combination with her other impairments, both at

6 step three, and when calculating her residual functional

capacity (“RFC”). See Doc. No. 10-1 at 8. To analyze this

issue, I begin with the relevant legal framework, and then

consider the facts of Lavoie’s case.

1. Legal Framework

In assessing whether a claimant is disabled, an ALJ must

consider “the combined effect of all of a claimant's

impairments,” regardless of whether those impairments are

classified as “severe.” McDonald v. Sec’y Health & Human

Servs.,

(1st Cir. 1986); see

(d)(2)(B); 20 C.F.R. 404.1523. It is “simply a matter of

common sense that various physical, mental, and psychological

defects, each nonsevere in and of itself, might in combination,

in some cases, make it impossible for a claimant to work.”

McDonald,

. An ALJ must therefore “consider the

combined effect of all of [a claimant’s] impairments without

regard to whether any such impairment, if considered separately,

would be of sufficient severity.” 20 C.F.R. 404.1523; see SSR

96-8P,

, at *5 (July 2, 1996). And, although an

ALJ has “considerable latitude in how” she considers non-severe

impairments, Chabot,

, she may “not disregard

individual, non-severe impairments where the claimant's

collective impairments are severe,” Forni v. Barnhart,

.

Applying these principles, I concluded in Forni v.

Barnhart,

, that the ALJ’s failure to consider a

claimant’s depression in combination with his other impairments

warranted a remand. In that case, the ALJ determined that the

claimant’s “mental impairment was not severe but that his asthma

and carpal tunnel syndrome were severe.” Forni,

. The ALJ “then completely (and improperly) dropped Forni's

depression from his analysis, thereafter analysing only the

effects of asthma and carpal tunnel on” the claimant’s RFC.

Because the ALJ did not address the claimant’s impairments in

combination “throughout the sequential analysis,” I found that

his decision was not supported by substantial evidence. Id. at

24.

Judge McCafferty recently reached a similar conclusion in

Morse v. Colvin,

. In Morse, the ALJ determined at

step two that the claimant’s depression, panic disorder, and

sleep apnea were non-severe impairments, and did not address

those impairments thereafter. Morse,

.

Instead, at step three, the ALJ stated that “none of [the

claimant’s] three severe impairments individually met or equaled

the severity of a listed impairment, but did not address the

combination of those three impairments or even mention [the

8 claimant’s] non-severe impairments.”

Then, as in Forni,

the ALJ “said nothing at all about [the claimant’s] non-severe

impairments in his discussion of [the claimant’s] RFC.”

According to the court, this apparent failure to consider the

claimant’s non-severe impairments after step two warranted a

remand. Id. at 23; see Walker v. Bowen,

(4th

Cir. 1989) (“[T]he ALJ must adequately explain his or her

evaluation of the combined effects of the impairments.”);

Reichenbach v. Heckler,

(4th Cir. 1985)

(remanding where the ALJ “failed to provide adequate explanation

to show that he had considered the combined effect of the

impairments so as to allow proper judicial review”); see also

Stephenson v. Halter, No. CIV. 00-391-M,

, at *2

(D.N.H. Aug. 20, 2001).

2. Application

The ALJ’s decision here suffers the same deficiencies as

the decisions at issue in Forni and Morse. In this case, the

ALJ determined at step two that Lavoie’s depression was not a

severe impairment. Then, at step three, the ALJ discussed each

of Lavoie’s severe impairments -- fibromyalgia, diabetes, carpal

tunnel syndrome, breathing disorders, and headaches –- but did

not discuss Lavoie’s depression in combination with her

9 fibromyalgia.1 Tr. at 65-66. And, like in Forni and Morse, the

ALJ did not analyze Lavoie’s depression in calculating her RFC.

Tr. at 66-75. Instead, the RFC assessment included an extended

discussion of the medical evidence, and Lavoie’s credibility

concerning, her “severe” impairments, but not her depression.2

Tr. at 66-75. The ALJ’s decision thus suggests that she

impermissibly dropped Lavoie’s depression from her analysis in

calculating Lavoie’s RFC, and only considered Lavoie’s “severe”

impairments at that point.

The Commissioner nonetheless makes several arguments in

defense of the ALJ’s decision. First, the Commissioner asserts

that the ALJ’s analysis at step three implies that she

adequately considered Lavoie’s depression. Doc. No. 12-1 at 13-

14. Although the ALJ certainly mentioned Lavoie’s depression at

step three, Tr. at 65-66, the Commissioner also concedes that

1Fibromyalgia is frequently associated with depression. See SSR 12-2p,

(S.S.A. July 25, 2012). “Fibromyalgia patients who suffer with depression tend to be less active, resulting in increased pain and suffering.” Barnes v. Astrue, No. 07-2141,

, at *3 (W.D. Ark. Dec. 10, 2008). For that reason, courts often remand cases where the ALJ does not address the combined effects of a claimant’s fibromyalgia and depression. See id.; see also Hazelton v. Astrue, No. 4:08-2767-TER,

, at *5 (D.S.C. Mar. 19, 2010).

2The word “depression” appears once in the ALJ’s ten-page RFC analysis, and only in the context of the ALJ summarizing a single treatment note. See Tr. at 72.

10 “the ALJ did not specifically indicate that she was considering”

Lavoie’s depression and fibromyalgia in combination. Doc. No.

12-1 at 14. Moreover, a “boilerplate assertion[]” that an ALJ

considered all of the claimant’s impairments in combination,

“without describing any actual analysis,” is insufficient.

Morse,

.

Second, the Commissioner claims that the ALJ’s RFC

determination shows that she considered Lavoie’s depression

after step three. See Doc. No. 12-1 at 15. More specifically,

the Commissioner argues that the ALJ “included mental

restrictions” in Lavoie’s RFC, id. at 15, like limiting Lavoie

to uncomplicated tasks, and requiring “an environment without

strict production quotas, such as those found on a factory

assembly line.” Tr. at 67. According to the Commissioner,

these restrictions show that the ALJ contemplated Lavoie’s non-

severe impairments in calculating her RFC.

This argument is also unpersuasive. The ALJ did not

expressly connect these restrictions to Lavoie’s depression in

her decision, and the cited limitations apparently stem from the

medical expert’s testimony at Lavoie’s December 2014 hearing.

See Tr. at 156-215 (hearing transcript); cf. Shaw,

(reviewing hearing transcript in considering whether ALJ’s

failure to discuss a mental impairment in his RFC determination

11 was harmless). When asked to describe Lavoie’s functional

limits, the medical expert testified that “on two [inaudible],

the basis of the fibromyalgia as well as the neuropathy

involving her lower extremities we would want this to have a low

stress situation, both physically and emotionally . . . .” Tr.

at 194. The expert went on to express his opinions regarding

Lavoie’s physical limitations -– her ability to stand, sit,

lift, reach, climb stairs, her need to change positions, etc.

He later clarified that he was “not including the impact of the

psychological factors [in his analysis] because I’m not a

psychiatrist . . . .” Tr. at 201.

The limitations cited by the Commissioner therefore seem to

relate to Lavoie’s fibromyalgia, a severe impairment, and the

neuropathy in Lavoie’s lower extremities; but not her

depression. The ALJ’s summary of the medical expert’s testimony

-- that the expert had “testified that [Lavoie] could perform

work largely as described in the above residual functional

capacity given the identified medically determinable severe

impairments,” Tr. at 74 (emphasis added) -- corroborates this

conclusion, because it explicitly connects the RFC assessment to

Lavoie’s “severe impairments,” but not to her (non-severe)

depression. The record thus does not support the Commissioner’s

claim that the RFC determination reflects Lavoie’s depression.

12 Finally, the Commissioner argues that Lavoie has not shown

that the ALJ’s purported error resulted in any harm. See Doc.

No. 12-1 at 14-15. Lavoie claims that the ALJ’s failure to

address her depression after step three caused harm, because the

“RFC determination does not reflect any functional limitations

related to this mental impairment.” Doc. No. 10-1 at 8.

Although the Commissioner is right that Lavoie has the

burden of establishing that an ALJ’s step two error caused harm,

Chabot,

, it is equally true that an ALJ must

“provide adequate explanation to show that he had considered the

combined effect of the impairments so as to allow proper

judicial review,” Reichenbach,

. In this case,

where the ALJ did not address Lavoie’s depression in calculating

her RFC, and the record instead suggests that the ALJ dropped

Lavoie’s non-severe impairments from consideration in

calculating Lavoie’s RFC, the ALJ’s analysis fell short of this

standard. Cf. Morse,

. The ALJ’s decision

therefore is not supported by substantial evidence, and this

case must be remanded for further consideration.

IV. CONCLUSION

For the foregoing reasons, I deny the Commissioner’s motion

to affirm (Doc. No. 12) and grant Lavoie’s motion to reverse

13 (Doc. No. 10). Pursuant to sentence four of

(g),

I remand the case to the Social Security Administration for

further proceedings consistent with this Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 24, 2016

cc: Janine Gawryl, Esq. Robert Rabuck, Esq.

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