UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Brandi Gale Differ,

v. Civil No. 15-cv-029-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Brandi Gale Differ has appealed the Social Security

Administration’s (“SSA”) denial of her application for

disability benefits. An administrative law judge at the SSA

(“ALJ”) ruled that, despite several severe physical impediments,

Differ retains the residual functional capacity (“RFC”) to

perform jobs that exist in significant numbers in the national

economy, and thus is not disabled. See

(a), 416.905(a). The Appeals Council later denied

Differ’s request for review, see

§ 404.967, with the result

that the ALJ’s decision became the final decision on Differ’s

application, see id. § 404.981. Differ then appealed the

decision to this court, which has jurisdiction under

(g) (Social Security).

Differ has moved to reverse the decision, see L.R. 9.1(b),

contending that the ALJ erred in his treatment of medical and

other opinion evidence at steps two through four of his analysis. The Acting Commissioner of the SSA has cross-moved

for an order affirming the ALJ’s decision. See L.R. 9.1(e).

After careful consideration, the court agrees with Differ that

the ALJ erred in weighing the medical opinion evidence, and

therefore grants Differ’s motion to reverse (and denies the

Acting Commissioner’s motion to affirm) the ALJ’s decision.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). The

court will uphold the ALJ’s decision if it is supported by “such

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales,

(1971) (quotations omitted). Though the evidence in the record

may support multiple conclusions, the court will still uphold

the ALJ’s findings “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).

2 II. Background

In assessing Differ’s request for disability benefits, the

ALJ engaged in the requisite five-step process. See

. After concluding that Differ had not engaged in

substantial gainful activity since the date of her application,

March 16, 2012, he analyzed the severity of Differ’s

impairments. He determined that Differ suffers from two severe

physical impairments: obesity and status post open reduction

and internal fixation surgery of the right hip. He concluded,

however, that Differ’s claimed mental impairments -- depression

and anxiety/post-traumatic stress disorder -- were not severe.

In doing so, he considered the opinions of two medical experts:

Dr. Richard Schnable, Differ’s treating psychologist, and Dr.

Michael Schneider, the non-examining State agency psychological

consultant. The ALJ gave “significant weight” to Dr.

Schneider’s opinion and “little weight” to Dr. Schnable’s, and

concluded, based on his own “common sense appraisal of the

totality of the evidence,” that Differ did not suffer from any

“severe” mental health conditions. Admin R. at 23-24.

At the third step, the ALJ found that Differ’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations. See

(d), 416.925, and 416.926.

3 He did not consider Differ’s alleged mental impairments at that

step.

The ALJ then concluded that Differ retained the RFC to

perform a full range of sedentary work with several exertional

limitations. After applying the same weight to the experts’

respective opinions as at the second step, the ALJ crafted an

RFC that did not account for any mental impairments. Finally,

finding that Differ had not performed any work at substantial

gainful activity since 1990, and thus had no past relevant work

that she could perform, see

, the ALJ

continued to step five, where he concluded that Differ could

perform jobs that exist in significant numbers in the economy.

Therefore, the ALJ found, Differ was not disabled within the

meaning of the Social Security Act.

III. Analysis

Differ takes issue with the treatment of her alleged mental

impairments at each of the second, third, and fourth stages of

the ALJ’s analysis. In particular, she contends that the ALJ

erred by (1) relying on his own “common sense appraisal,” Admin.

R. at 4, and the opinion of Dr. Schneider to find that her

mental impairments were not “severe” in step two; (2) not

considering her mental impairments at all in step three; and (4)

improperly weighing the expert evidence when crafting her RFC in

4 step four. As discussed below, any error by the ALJ in his

treatment of the opinion evidence at step two may have been

harmless; but his treatment of that evidence at step four

constitutes reversible error.

The ALJ first considered the opinion of the non-examining

state agency consulting, Dr. Schneider. He afforded Dr.

Schneider’s opinion “significant weight,” citing Dr. Schneider’s

conclusion that “there was ‘insufficient evidence to

substantiate the presence of [an affected or anxiety-related]

disorder.’” Admin. R. at 23-24. The opinions of state agency

psychological consultants

can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence . . ., the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the State agency . . . psychological consultant . . . .

SSR 96-6p,

, at *2. Such an opinion

may be entitled to greater weight than a treating source’s medical opinion if the State agency . . . psychological consultant's opinion is based on a review of a complete case record that includes a medical report from a specialist in the individual's particular impairment which provides more detailed and comprehensive information than what was available to the individual's treating source.

Id. at *3. But that is not the case here. To the contrary,

Dr. Schneider appears to have reviewed only a limited set of

5 Differ’s medical records -- far from the “complete case record”

-- and he did not review Dr. Schnable’s opinions or case notes,1

or the records of Differ’s visits to the Paincare Center, which

discuss her diagnoses of depression and anxiety and her

prescriptions related thereto. In fact, Dr. Schneider explained

that he found the evidence that he reviewed to be “insufficient

. . . to assess [Differ’s] current psychological functioning.”

Admin. R. at 98. “A state agency consultant’s opinion that is

based on an incomplete record, when later evidence supports the

claimant's limitations, cannot provide substantial evidence to

support the ALJ's decision to deny benefits.” Snay v. Colvin,

(citing Alcantara v. Astrue,

(1st Cir. 2007)). Accordingly, the ALJ erred in giving

significant weight to Dr. Schneider’s opinion and in relying on

the same when crafting Differ’s RFC.

The ALJ then discounted the opinion of Dr. Schnable,

Differ’s treating physician of several years. Dr. Schnable

opined that Differ “meets criteria for a variety of mental

health disorders (PTSD, depression, anxiety, borderline

1 Dr. Schneider reviewed Differ’s records on August 30, 2012. See Admin. R. at 98. He did not consider Dr. Schnable’s opinion and records, which were submitted in early 2014, almost a year and a half later. See Admin. R. at 529, 752, 880. Importantly, Dr. Schnable’s records cover a period of treatment that both pre- and post-dates Dr. Schneider’s review of the Differ’s medical records. 6 personality disorder), but I believe the most accurate and

encompassing is Dissociative Identity Disorder.” Admin. R. at

529. He further opined that her behavioral patterns, as a

result, “have greatly compromised [Differ’s] adult functioning

in all areas of life - relationship, self-care, vocational

pursuits, mood-regulation, etc.”

Dr. Schnable also

completed a mental impairment questionnaire, laying out the

signs and symptoms of Differ’s mental impairments, some of which

-- such as disorientation as to time and place, memory

impairment, and persistent anxiety -- he designated as

“intermittent” in an “attempt to identify [Differ’s]

dissociative process . . . .” Admin. R. at 750. Among other

limitations, he concluded that Differ would have “[d]ifficulty

completing a normal work day and workweek without interruptions

from psychologically based symptoms.” Id. at 751. The ALJ

afforded “little weight” to Dr. Schnable’s opinions.

The medical opinion of a treating source is entitled to

controlling weight when that opinion “is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the] case record . . . .”

,

416.927. When an ALJ decides not to give controlling weight to

the treating source’s opinion, he must give “good reasons” for

7 the weight ascribed to that opinion.

(d)(2). Those reasons must be “supported by 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 that weight.” Social Security Ruling (“SSR”) 96-2p, Titles

II and XVI: Giving Controlling Weight to Treating Source Medical

Opinions,

, at *5 (S.S.A. 1996). However,

weighing of medical opinion “is called for when the case record

contains inconsistent evidence, such as contradictory RFC

assessments.” Littlefield v. Colvin,

(citing

.1520b(a), 416.920b(a)). When the case record

contains only one mental RFC assessment -- as it effectively

does here -- there is “nothing for the ALJ to put on the other

side of the scale to measure against [the sole] opinion.”

Under circumstances such as these, the ALJ erred by making an

RFC determination that failed to take Differ’s alleged mental

impairments into account -- a decision unsupported by any

medical opinion.2

2 Though it need not reach this issue in light of its conclusion above, the court is also skeptical that the ALJ’s allusion to Dr. Schnable’s “own treatment notes” failing to support his opinion, Admin R. at 24, 28, amounts to the “good reasons” required by

(c)(2) and 416.927(c)(2). Absent any explanation of how Dr. Schnable’s notes undermine his opinion, this bare reference to Dr. Schnable’s those treatment 8 Having discounted the opinion of Differ’s treating

psychologist and erroneously exalted the opinion of a state

agency consultant who did not review the relevant evidence, the

ALJ fell back on his own “common sense appraisal” of the

evidence. Admin. R. at 23. Where, as here, the medical

evidence does not contain an RFC assessment by a medical expert,

an ALJ ordinarily cannot assess the claimant’s RFC himself,

“since bare medical findings are unintelligible to a lay person

in terms of [RFC].” Gordils v. Sec’y of HHS,

(1st Cir. 1990). Because no exception to that general rule

applies in this case, see Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996), the ALJ erred by basing his assessment

of Differ’s mental RFC solely on his own evaluation of the

medical evidence.

IV. Conclusion

The court is left to conclude that the ALJ, having

dismissed the opinion of Differ’s treating physician and relied

on that of a state agency consultant who did not review the

notes is insufficiently specific to make clear the ALJ’s reasons for discounting that opinion. See Larocque v. Colvin,

(conclusory statement that opinion was inconsistent with medical record did not amount to rationale supported by substantial evidence); cf. Young v. Astrue,

(discounted weight given to treating physician’s opinion supported by “good reasons” where physician’s own notes indicated normal mental status). 9 relevant evidence, “effectively substituted his own judgment for

medical opinion.” Alcantara,

. This was

error, for an ALJ “cannot assess the claimant's RFC himself . .

. .” Levesque v. Colvin,

, at 2–3. Therefore, the

court is constrained to reverse the ALJ's decision and remand

this case to the SSA for further consideration.3

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

SSA’s decision4 is GRANTED, and the Acting Commissioner’s motion

to affirm it5 is DENIED. See

(g). The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: March 11, 2016 cc: Janine Gawryl, Esq. Michael T. McCormack, AUSA

3 Differ also argues that the ALJ erred at the second step by finding that her mental impairments were not severe and at the fourth step by failing to give appropriate weight to her husband’s opinion. The court need not reach these arguments because the ALJ’s error in weighing the opinion evidence in crafting her RFC necessitates reversal and remand in and of itself. All the same, the court observes that, while an error at the second step is generally considered harmless when “the ALJ found at least one severe impairment and progressed to the next step of the sequential evaluation,” McDonough v. Colvin,

, the ALJ here invoked the same analysis of the medical opinion evidence at step two as at step four.

4 Document no. 9.

5 Document no. 12. 10