UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Alisha Williams

v. Civil No. 15-cv-186-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Alisha Williams appeals the Social Security Administration’s

(“SSA”) denial of her application for disability benefits. An

Administrative Law Judge (“ALJ”) found that Williams suffered

from bipolar disorder, anxiety disorder, borderline personality

disorder, and alcohol abuse. The ALJ nevertheless found that

Williams was not disabled within the meaning of the Social

Security Act because she has sufficient residual functional

capacity (“RFC”) to work at jobs that exist in significant

numbers in the national economy. See

(d)(2)(A).

The SSA Appeals Council subsequently denied Williams’s request

for review of the ALJ’s decision, rendering the ALJ’s decision

final. Williams timely appealed to this court, pursuant to

(g). In due course, Williams moved to reverse the

SSA’s decision and the SSA’s Acting Commissioner moved to affirm

the denial of benefits. Williams argues that the RFC constructed by the ALJ was

flawed because it did not correctly weigh the evidence of

Williams’s non-exertional limitations, leading to a conclusion

that those limitations had little or no effect on the

occupational base of unskilled work. Thus, Williams argues, the

ALJ improperly relied upon the Medical Vocational Guidelines

(“Grid”) rather than consulting a vocational expert to identify

jobs that Williams could perform. After review of the pending

motions, the parties’ joint statement of material facts and the

administrative record, the court finds that substantial evidence

does not support the ALJ’s RFC determination. The court

therefore grants Williams’s motion, denies the Acting

Commissioner’s motion, and remands the case to the SSA.

I. Standard of Review

Judicial review of a final decision of the Commissioner is

limited to (1) whether substantial evidence supports the

Commissioner’s decision and (2) whether the Commissioner

applied the correct legal standards. Seavey v. Barnhart,

(1st Cir. 2001). The responsibility for weighing

conflicting evidence and resolving issues of credibility belongs

to the Commissioner and her designee, the ALJ.

;

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

(1st Cir. 1981). The Commissioner’s findings “as to any fact, if

2 supported by substantial evidence, shall be conclusive.”

(g). Substantial evidence is such evidence as a

reasonable mind might accept as adequate to support a conclusion.

Richardson v. Perales,

(1971). This is less

evidence than a preponderance but “more than a mere scintilla.”

Id.; Consolo v. Fed. Mar. Comm’n,

(1966).

Accordingly, the court must affirm the ALJ’s findings “if a

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

could accept it as adequate to support [the pertinent]

conclusion.” Rodriguez,

. This is true “even if

the record arguably could justify a different conclusion.”

Rodriguez Pagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1987).

II. Background1

In analyzing Williams’s benefit application, the ALJ invoked

the required five-step process. See

. First,

she concluded that Williams had not engaged in substantial work

activity after the alleged onset of her disability on May 11,

2009. Next, the ALJ determined that Williams suffered from

several severe impairments: bipolar disorder, anxiety disorder,

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (doc. no. 12) is incorporated by reference. See L.R. 9.1(d).

3 borderline personality disorder, and alcohol abuse. See

(c). At the third step, the ALJ concluded that

Williams impairments – either individually or collectively – did

not meet or “medically equal” one of the listed impairments in

the Social Security regulations. See

(d),

416.925, & 416.926. The ALJ next found that Williams had the RFC

to perform a full range of work at all exertional levels, but

with certain non-exertional limitations: (i) she is able to

understand, remember, and carry out short and simple instructions

and maintain attention and concentration for two-hour blocks of

time over an eight-hour workday; (ii) she is able to ask simple

questions, accept instructions, and respond appropriately to

criticism from supervisors; and (iii) she can respond

appropriately to changes in the work setting. See

(b) and 416.967(b).

After finding at step four that Williams could not perform

any past relevant work, the ALJ proceeded to step five, at which

the SSA bears the burden of showing that a claimant can perform

other work that exists in the national economy. Freeman v.

Barnhart,

(1st Cir. 2001). Here, the ALJ,

relying on Williams’s testimony and medical records, concluded

that Williams’s non-exertional limitations – consisting of mental

health issues – compromised her ability to work at all exertional

4 levels, but that those limitations had little or no effect on the

occupational base of unskilled work. The ALJ used the framework

of section 204.00 of the Grid and found Williams not disabled

within the meaning of the Social Security Act.

III. Analysis

A. Non-exertional impairment

Williams asserts two related arguments. First, that the ALJ

erred in finding that her non-exertional impairments had little

or no effect on the occupational base of unskilled labor, and

second, that the ALJ then erred by applying the Grid as a

framework for her decision, rather than consulting a vocational

expert. The court agrees with both assertions.

While the ALJ concluded that Williams’s mental health

impairments could reasonably be expected to cause her symptoms,

the ALJ also found Williams not credible concerning the

intensity, persistence and limiting effects of those impairments

(Admin. R. at 16). The ALJ’s reasoning was flawed, however.

First, the ALJ discounted Williams’s testimony regarding the

severity of her symptoms because of gaps in her treatment between

2009 and 2012. “Such lack of treatment,” the ALJ opined, “tends

to indicate that the claimant’s mental health symptoms are not

nearly as limiting as her hearing testimony would suggest.”

Admin. R. at 17. While treatment gaps are ordinarily a valid

5 basis for making such a decision, see Irlanda Ortiz v. Sec'y of

Health and Human Servs.,

(1st Cir. 1991), the

ALJ “must not draw any inferences about an individual’s symptoms

and their functional effects from a failure to seek or pursue

regular medical treatment without first considering[,]” inter

alia, whether the claimant can afford treatment. See SSR 96–7p,

at *8; Hainey v. Colvin,

. Here,

the record is clear that Williams not only stopped treatment

because she lacked health insurance, Admin. R. at 40, 335, but

she resumed it shortly after a Medicaid-based insurance plan was

in place because she was feeling suicidal.2

. There

is no indication in her decision that the ALJ considered this

sequence of events.

The court also notes that the ALJ rather dismissively

described Williams’s 2009 mental health treatment as having been

pursued “to avoid going to jail.” In fact, Williams described

the treatment as an alternative sentence imposed in a “mental

health court” after a 2009 assault arrest. Id. at 42. Rather

than simply an effort to “avoid going to jail,” the mental health

court is a long-standing “alternative sentencing” program in

2 The record also reflects a suicide attempt in 2010 Admin. R. at 333, and mental health treatment beginning in childhood. Id. at 39-40.

6 Cheshire County, New Hampshire.3 Of note, one of the eligibility

criteria for the program is a mental health disorder.

Given these defects in the ALJ’s negative credibility

determination, the court finds that the determination is not

supported by substantial evidence. Moreover, the ALJ relied on

the same credibility determination in deciding to give little

weight to three consultative examiners (Dr. Gregory Korgeski,

Ph.D., Dawn Spokis, R.N., and Evelyn C.K. Harriot, Ed.D.) because

their opinions – which conflicted with the ALJ’s eventual RFC

determination4 – were based on self-reports which the ALJ

insupportably “deemed less than credible” for the reasons

described above.

The ALJ ultimately relied on the report of state agency

consultant Dr. Patricia Salt, whose opinion was adopted nearly

verbatim in formulating the RFC. While giving greater weight to

the state’s examiner than to other examiners is generally

permissible, it is not so in the context of this case, where an

3 See, Alternative Sentencing Program and Mental Health Court, http://co.cheshire.nh.us/Alternative%20Sentencing%20MHC/ ASPMHCmain.htm (last viewed July 8, 2016). 4 Dr. Korgeski opined that Williams would be “inconsistent in her ability to concentrate and complete tasks due to mood shifts.” (Admin. R. at 17). Nurse Spokis opined that Williams suffered “marked impairments” in social functioning, and maintaining concentration, persistence and pace. Id. Dr. Harriot concluded that Williams would be unable to make simple decisions, maintain attendance, or interact appropriately with others. Id.

7 impermissible credibility determination was used to support

giving less weight to the consultative examiners.

Finally, the court notes that the ALJ gave some weight to

the opinions of Williams’s treating counselor, Antoinette Ramine,

and Mellissa Mullen, LICSW, each of whom described Williams’s

impairments as “moderate” in connection with Williams’s

application for state disability benefits. However, there was

discussion at the hearing in which claimant’s counsel pointed out

the state nomenclature regarding the severity of impairment

differed from the Social Security terminology such that

“moderate” in the former context was equivalent to “marked” in

the latter. The difference is significant, as a “marked”

limitation would preclude use of the Grid. The ALJ, in giving

weight to Ramine and Mullen, does not appear to have considered

these differences. This, too, renders the ALJ’s conclusion that

Williams’s non-exertional impairment had little or no effect on

the occupational base of unskilled labor insupportable.

B. Use of the Grid

It is true, as the Secretary contends, that an ALJ may rely

on the Grid if a claimant’s non-exertional limitations “impose no

significant restriction on the range of work a claimant is

exertionally able to perform.” Ortiz v. Sec'y of Health and

Human Servs.,

(1st Cir 1989). But “an ALJ

8 typically should err on the side of taking vocational evidence

when such a limitation is present . . . . And should an ALJ

determine that the Grid can be relied on in such a case, we urge

that the evidentiary support for that decision be enumerated . .

. in great[] detail . . . .”

. Here, as explained

above, the ALJ’s conclusion that Williams’s mental health issues

“imposed no significant restriction” cannot withstand scrutiny.

As such the use of the Grid was improper, and the ALJ’s decision

must be reversed and the matter remanded for further proceedings.

IV. Conclusion

Claimant’s motion to reverse5 is granted. The Acting

Commissioner’s motion to affirm6 is denied. The Clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: July 20, 2016

cc: Bennett B. Mortell, Esq. Terry L. Ollila, AUSA

5 Doc. no. 8. 6 Doc. no. 11.

9