UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy MacKenzie

v. Civil No. 15-cv-198-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Timothy MacKenzie seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying his application for

disability insurance benefits and supplemental security income.

In support of his motion to reverse, MacKenzie contends that the

Administrative Law Judge (“ALJ”) erred in assessing his residual

functional capacity, which resulted in an erroneous

determination that he was not disabled. The Acting Commissioner

moves to affirm the decision.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010).

Background

In this district, parties in a social security case are

required to prepare and file a joint statement of material facts

that “describe[s] all facts pertinent to the decision of the

case and all significant procedural developments, and define[s]

all medical terms.” LR 9.1(c) & (e). Therefore, the background

facts are summarized from the parties’ joint statement of

material facts.1

MacKenzie applied for social security benefits in September

of 2012, alleging that he had been disabled since November 12,

2008. He was thirty-three years old when he filed his

application. Although he left school after the ninth grade,

MacKenzie then earned a high school equivalency diploma, known

as a GED.

In December of 2012, Dr. Matthew Masewic did a consultative

1 Although the ALJ refers to other record evidence in his decision, the parties did not describe that evidence in their joint statement.

2 orthopedic examination of MacKenzie. Dr. Masewic found that

MacKenzie had some degenerative disk disease in his neck,

greater on the right side, but noted that he was not able to do

a complete examination because MacKenzie would not allow it,

claiming pain. Dr. Masewic concluded that the functional issues

and pain MacKenzie complained of were not related to his neck

and that either MacKenzie was embellishing his symptoms or he

had another disorder that had not been diagnosed. In functional

terms, Dr. Masewic found that MacKenzie’s degenerative disk

disease had a mild to moderate effect on his functional capacity

and that his lower back pain, which could not be properly

examined, would also have a mild to moderate effect on his

functional capacity.

Dr. Masewic noted that MacKenzie had a greater range of

motion while in his office than he demonstrated during the

physical examination and that MacKenzie’s complaints of pain

were out of proportion to his ability to walk, lie down, and sit

in a chair. Dr. Masewic also noted significant discrepancies

between MacKenzie’s reports of impairment and his demonstrated

abilities. For example, while MacKenzie claimed a loss of

sensation and weak grip strength in his hands, those impairments

were inconsistent with a lack of atrophy in his hands, with

normal dexterity, and his ability to pick things up and use his

right hand to get off the examination table. Dr. Masewic wrote

3 that MacKenzie’s story about having to tape a hammer to his hand

to use it was “preposterous”. MacKenzie also displayed a

protected and broad-based gait that Dr. Masewic found “strange”

because his neck issues would not affect his gait.

State agency psychologist Laura Landerman, Ph.D., reviewed

MacKenzie’s records in January of 2013. Dr. Landerman concluded

that MacKenzie had moderate difficulty in maintaining social

functioning. She also found that MacKenzie was at most

moderately limited in his ability to interact with supervisors.

In November of 2013, MacKenzie’s physical therapist, Rachel

Heath, completed two forms for MacKenzie, a “Medical Source

Statement of Ability to Do Work-Related Activities” and a “Rehab

Report: Evaluation Summary with Functional Assessment.” The

Rehab Report was also signed by MacKenzie’s primary care

physician, Dr. Christopher Allen. On both forms, Heath

indicated that MacKenzie was limited in his ability to do

manipulative activities, such as fine motor tasks, reaching,

fingering, and handling, which he could do occasionally. Heath

noted, however, that MacKenzie used less than maximum effort

during the testing and that he demonstrated a “minor discrepancy

in level of consistency to the reliability and accuracy of pain

and disability.”

The hearing on MacKenzie’s application was held on January

14, 2014. MacKenzie testified that he was currently homeless,

4 living in a tent in the woods, and that he worked part time for

friends doing jobs like picking up brush and sticks to make fire

piles and keeping their job sites neat. He also testified that

he was taking 15 milligrams of Oxycontin eight times a day in

order to be able to get up and move around and that on some days

he stayed in bed all day covered in heating pads and crying. He

said that his arms and hands were completely numb and that he

suffered from severe migraine headaches.

A vocational expert participated in the hearing by

telephone. The ALJ posed a hypothetical to the vocational

expert of a person limited to light work with certain postural

limitations and restrictions in the work setting. The

vocational expert testified that such a person could do jobs as

a price marker, mail sorter, and collator operator. MacKenzie’s

counsel asked the vocational expert to add the physical

limitations that MacKenzie’s physical therapist indicated in her

Medical Source Statement. In response, the vocational expert

said that person could work as a surveillance-system monitor and

a callout operator.

The ALJ issued a decision on January 24, 2014, finding that

MacKenzie was not disabled. The Appeals Council denied

MacKenzie’s request for review, making the ALJ’s decision the

final decision of the Acting Commissioner.

5 Discussion

MacKenzie contends that the ALJ’s residual functional

capacity assessment is not supported by the record evidence.

MacKenzie further contends that because of the alleged errors in

the residual functional capacity assessment, the finding that

jobs existed which MacKenzie could do was also error, requiring

that the decision be reversed. The Acting Commissioner moves to

affirm, arguing that any error in the physical residual

functional capacity assessment was harmless because of the

hypotheticals posed to the vocational expert and that the ALJ

properly considered Dr. Landerman’s opinion in assessing

MacKenzie’s psychological impairments.

In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

and 416.920.2 The

claimant bears the burden through the first four steps of

proving that his impairments preclude him from working. Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

step, the Acting Commissioner has the burden of showing that

2 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

6 jobs exist which the claimant can do. Heggarty v. Sullivan,

(1st Cir. 1991).

A. Residual Functional Capacity

In assessing a claimant’s residual functional capacity, the

ALJ determines “the most [the claimant] can do despite [his]

limitations . . . based on all the relevant evidence in [the]

case record.”

(a)(1). The ALJ found that

MacKenzie was physically able to do work at the light exertional

level, with postural restrictions. The ALJ also addressed

MacKenzie’s psychological limitations by restricting him to

unskilled work in a low stress environment and requiring that he

“avoid all social interaction with the general public” and have

only “brief and superficial social interaction with coworkers

and supervisors.”

1. Headaches

MacKenzie states briefly that the ALJ erred in failing to

find that his headaches were a severe impairment at Step Two and

in failing to consider his headaches in assessing residual

functional capacity. The Acting Commissioner contends that

MacKenzie did not sufficiently develop this issue to allow

review. The court agrees.

The parties’ joint factual statement, which must include

all of the facts that are pertinent to the decision, does not

7 mention headaches. The ALJ addressed the issue of headaches at

Step Two and did not find a severe limitation because MacKenzie

had not previously alleged headaches and because of the lack of

medical records showing treatment for headaches. In his

memorandum, MacKenzie cites twenty or more pages of the

administrative record to show that his headaches were severe

without explaining what the records demonstrated in support of

his claim.3

As such, MacKenzie has not shown any error by the ALJ in

failing to find that his headaches constituted a severe

impairment at Step Two and failing to consider headaches for

purposes of the residual functional capacity assessment.

2. Physical Capacity

MacKenzie contends that the ALJ erred because there is no

opinion in the record that provides a functional capacity

assessment for light work. He argues that the ALJ should have

credited his physical therapist’s assessment, adopted by Dr.

Allen, that he was limited to sedentary work with additional

limitations, including only occasionally being able to do

manipulative activities. In response, the Acting Commissioner

3 The cited records appear to pertain to treatments for MacKenzie’s neck pain, not headaches. Although headache is mentioned, there is no evidence of the severity or effects of the headaches.

8 labels MacKenzie’s argument a “red herring” because MacKenzie’s

counsel asked the vocational expert a question with the physical

therapist’s more restricted assessment and the vocational expert

identified jobs that could be done with those limitations.

Before determining the exertional level of work a claimant

can do in a residual functional capacity assessment, an ALJ

“must first identify the individual’s functional limitations or

restrictions and assess his or her work-related abilities on a

function-by-function basis.” Titles II and XVI: Assessing

Residual Functional Capacity in Initial Claims, SSR 96-8p,

(July 2, 1996). Nevertheless, an ALJ’s failure to

assess all functional limitations, as required by SSR 96-8p, is

harmless if the functional assessment is provided in the record.

See Beaune v. Colvin,

, at *3,

(D.N.H. July 10, 2015); Dunning v. Colvin,

, at

*5 (D. Me. July 9, 2015). Generally, an ALJ is not qualified to

interpret medical records in functional terms and must rely on

an evaluation done by a physician or another qualified expert.

Nguyen,

.

In making his residual functional capacity assessment, the

ALJ gave great weight to Dr. Masewic’s opinion but also

acknowledged that Dr. Masewic did not provide a function by

function assessment. The record does not include a functional

9 capacity assessment that supports the ALJ’s findings.4

Therefore, the ALJ’s residual functional capacity assessment is

not supported by substantial evidence in the record.

3. Psychological Limitations

MacKenzie charges that the ALJ’s residual functional

capacity assessment was also inaccurate because it omitted the

limitation found by Dr. Landerman that MacKenzie would have to

work in an environment with a “non critical supervisor.” The

Acting Commissioner contends that this alleged error amounts to

an assertion that “the ALJ did not properly account for three

words” in Dr. Landerman’s opinion and argues that the “three

words . . . are so ambiguous that the ALJ could not possibly

have adopted them.” The Acting Commissioner further contends

that substantial evidence supports the ALJ’s omission of that

limitation.

Dr. Landerman indicated that MacKenzie’s psychological

limitations would cause, at most, moderate limitations in his

ability to function in a work environment as long as he had had

limited social interaction and a non-critical supervisor. The

ALJ gave significant weight to Dr. Landerman’s opinion. The

4 This case presents a troubling situation in which it appears that MacKenzie so embellished or exaggerated his symptoms and impairments that an accurate functional assessment was difficult if not impossible.

10 ALJ’s assessment that MacKenzie retained the functional capacity

to do unskilled work, in a low stress environment, and with

limited interaction with the public, coworkers, and supervisors

was based on that opinion. The ALJ, however, did not include

the limitation that MacKenzie would need to have a non-critical

supervisor.

Dr. Landerman’s opinion that MacKenzie could function in a

work setting was predicated on the requirement that he work in

an environment with a non-critical supervisor. Without that

limitation, Dr. Landerman’s opinion does not support the ALJ’s

residual functional capacity assessment. The record does not

include another opinion that MacKenzie could work despite his

mental and psychological limitations.

The ALJ did not explain why he omitted the requirement of a

non-critical supervisor. Although the Acting Commissioner now

attempts to explain the omission, the ALJ did not provide that

explanation. Post hoc rationalization cannot be considered in

support of the ALJ’s decision, as review is generally limited to

the reasons provided by the ALJ in the decision. See SEC v.

Chenery,

(1947); Graves v. Colvin,

,

at *7, n.4 (D. Mass. Jan. 21, 2016); Van Blarcom v. Astrue,

, at *4 n.2 & 4 (D.N.H. May 25, 2011). The Acting

Commissioner has not shown that an exception to the Chenery rule

11 applies here. See Desjardins v. Colvin,

, at *8

(D. Me. July 23, 2015).

Therefore, the ALJ did not properly assess MacKenzie’s

psychological limitations for purposes of the residual

functional capacity assessment.

B. Step Five – Disability Determination

At Step Five, a vocational expert’s opinions about jobs

provides substantial evidence to support the ALJ’s disability

determination if the opinions are based on hypothetical

questions that accurately reflect the claimant’s limitations.

See Perez v. Sec’y of Health & Human Servs.,

(1st Cir. 1991); Otero v. Colvin,

, at *6 (D.N.H.

Aug. 27, 2015).

Although the ALJ’s hypothetical to the vocational expert

was not based on a physical functional assessment in the record,

as is required, MacKenzie’s counsel provided a hypothetical

based on the physical therapist’s functional capacity

assessment. In response, the vocational expert testified that

even with those physical limitations there were jobs the

claimant could do. Therefore, the ALJ’s error was harmless.

The ALJ’s failure to incorporate the non-critical

supervisor limitation, however, was not corrected. Because Dr.

Landerman’s opinion about MacKenzie’s ability to function in a

12 work environment required a non-critical supervisor and no other

opinion supports the ALJ’s residual functional capacity

assessment, the omission of that limitation is not harmless. As

a result, the ALJ’s hypothetical question to the vocational

expert did not accurately reflect MacKenzie’s limitations, as

found by Dr. Landerman, and the vocational expert’s testimony

did not provide substantial evidence to support the decision.

Conclusion

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

and remand (document no. 9) is granted. The Acting

Commissioner’s motion to affirm (document no. 14) is denied.

The decision of the Acting Commissioner is reversed, and

the case is remanded under Sentence Four for further

proceedings.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

February 23, 2016

cc: Penelope E. Gronbeck, Esq. T. David Plourde, Esq.

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