UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kathleen Chambers

v. Civil No. 15-cv-150-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Kathleen Chambers appeals the Social Security

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

benefits. An Administrative Law Judge (“ALJ”) found that

Chambers suffered from diabetes, depression, anxiety, and left

shoulder capsulitis. The ALJ nevertheless found that Chambers

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 Chambers’s request for review of the ALJ’s

decision, rendering the ALJ’s decision final. Chambers timely

appealed to this court, pursuant to

(g). In due

course, Chambers moved to reverse the SSA’s decision and the

SSA’s Acting Commissioner moved to affirm the denial of benefits.

Chambers asserts several arguments in support of her motion.

First, she claims that the ALJ failed to give proper weight to various medical opinions, including that of her long-time

treating physician. Next, she argues that the ALJ improperly

disregarded a statement submitted by a former employer. Chambers

further argues that the ALJ erred in concluding that the severity

of her symptoms was not fully substantiated. In addition,

Chambers asserts that the ALJ erred in constructing an RFC that

was not supported by medical evidence. Finally, Chambers claims

that the ALJ improperly relied on an incomplete hypothetical

posed to the vocational expert.

After review of the pending motions, the parties’ joint

statement of material facts and the administrative record, the

court grants Chambers’s motion, denies the Acting Commissioner’s

motion and remands the case to the SSA.

I. Standard of Review

The court’s review of the SSA’s final decision “is limited

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

ALJ’s decision will be upheld if it is supported by substantial

evidence, that is, “such evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v.

Perales,

(1971) (quotations omitted). This is

less evidence than a preponderance but “more than a mere

2 scintilla.” Id.; Consolo v. Fed. Mar. Comm’n,

(1966). The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial

evidence. Consolo,

. Accordingly, the ALJ’s

resolution of evidentiary conflicts must be upheld if supported

by substantial evidence, even if contrary results are

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

(1st Cir. 1987).

II. Background1

In analyzing Chambers's benefit application, the ALJ invoked

the required five-step process. See

. First,

he concluded that Chambers had not engaged in substantial work

activity after the alleged onset of her disability on July 18,

2012. Next, the ALJ determined that Chambers suffered from

several severe impairments: diabetes, depression, anxiety and

adhesive capsulitis of the left shoulder. See

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

Chambers’s impairments – either individually or collectively –

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

in the Social Security regulations. See

(d),

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. 11) is incorporated by reference. See L.R. 9.1(d).

3 416.925, & 416.926. The ALJ next found that Chambers had the RFC

to perform light, unskilled work, with the modification that she

must avoid climbing ladders, ropes, and scaffolds; that she can

only occasionally climb ramps and stairs, bend, stoop, balance,

kneel, crouch, and crawl; that she can occasionally reach

overhead with her upper left arm; that she should avoid exposure

to vibrations; that she is limited to simple work and that she is

able to maintain attention and concentration for two hour

increments during an eight hour day. See

(b) and 416.967(b).

After finding at step four that Chambers 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 Chambers’s testimony and medical records, and the

testimony of a vocational expert, concluded that Chambers could

perform jobs which exist in the regional and national economy,

such as cashier, fast food worker, and price marker. As

significant here, however, the vocational expert testified, in

response to a hypothetical posed by the ALJ, that absence from

work three or more times per month and a requirement of multiple

10-15 minute breaks would be limitations that would prohibit all

4 work. Ultimately, the ALJ found Chambers not disabled within the

meaning of the Social Security Act.

III. Analysis

A. Weight given to treating physician's opinion

Chambers’s treating endocrinologist, Dr. Beisswenger,2

completed an RFC questionnaire. He noted Chambers’s diabetes

diagnosis, as well as fatigue and hyper/hypoglycemic attacks. He

also observed that Chambers suffered from depression and anxiety,

and that her symptoms would interfere with the attention and

concentration necessary to perform simple work tasks

“frequently,” that is, roughly one-third to two-thirds of an

eight-hour day. Ultimately, Dr. Beisswenger concluded that

Chambers should avoid concentrated exposures to environmental

hazards, that her symptoms would produce “good days” and “bad

days,” and that she would likely to be absent from work more than

four days per month as a result of her impairments and treatment.

Chambers argues that the ALJ should have given Dr. Beisswenger’s

opinion more weight. The court agrees.

A treatment provider’s opinions must be given controlling

weight if the “treating source’s opinion on the issue(s) of the

nature and severity of [the applicant’s] impairment(s) is

2 According to the record Dr. Beisswenger treated Chambers roughly twice a year for ten years.

5 well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

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

(c)(2). In a similar vein, the longer a treating source

has treated a claimant and the more times the claimant has been

seen by a treating source, the more weight we will be given to

the source's medical opinion.

at § 404.1527(c)(2)(I). Where

a long-time treating physician has enough information to have

obtained a longitudinal picture of the claimant’s impairment, the

source’s opinion will be given more weight than if it were from a

non-treating source. Id. Finally, “[w]hen a treating

physician’s opinion is not entitled to controlling weight, the

ALJ determines the amount of weight based on factors that include

the nature and extent of the physician’s relationship with the

applicant, whether the physician provided evidence in support of

the opinion, whether the opinion is consistent with the record as

a whole, and whether the physician is a specialist in the field.”

Remick v. Astrue,

(citing

(d)(1–6)). The ALJ must give reasons for the weight

given to treating physician's opinions.

(citing Soto–Cedeño

v. Astrue, 380 Fed. App'x. 1, 4 (1st Cir. 2010)).

Here, the ALJ gave Dr. Beisswenger’s opinion only “little

weight” because, according to the ALJ, his conclusion regarding

6 how much time Chambers would miss from work lacked support and

was contradicted by the remainder of the evidence of record.

After reviewing the record, the court finds that, in fact, it is

the ALJ’s conclusion that is unsupported by the record.

To start with, the court notes that the ALJ supported his

conclusion in part by finding that Chambers’s testimony was

inconsistent with Beisswenger’s findings. However, in so doing,

it appears the ALJ did not consider the record as a whole. See

Rodriguez v. Sec'y of Health and Human Servs.,

(1st Cir. 1981) (“We must uphold the Secretary’s findings in this

case if a reasonable mind, reviewing the evidence in the record

as a whole, could accept it as adequate to support his

conclusion.”).

In reducing the weight given to Dr. Beisswenger’s opinion,

the ALJ first noted that Chambers only had one diabetes-related

emergency room visit, to which she “did not go willingly.” From

here, the ALJ stated that Chambers “indicated she prefers to

manage her condition on her own, which suggests that it is not

severe enough to warrant medical attention.” (Admin. R. at 19)

(emphasis added). The record simply does not support this

conclusion. In response to questioning by the ALJ, Chambers

testified that there were indeed other instances of elevated

blood sugar which might have necessitated emergency services that

7 she did not pursue. (Id. at 36). However, her decision not to

go to the hospital did not involve any “preferences” or lack of

medical need. Instead, Chambers testified that either she was

unable to drive herself – impliedly due to her condition – or

she couldn’t afford the ambulance fee for each emergency setting.

(Id. at 36-7). Moreover, she testified that the stress of the

emergency room actually worsened her condition. (Id. at 37).

This testimony cannot be squared with the ALJ’s statement that

Chambers’s avoidance of the emergency room is an indication of

the lack of severity of her condition.

Another factor in the ALJ’s consideration of Dr.

Beisswenger’s opinion revolved around Chambers declining to use

an insulin pump, which, the record suggests, “might” have helped

to better regulate her diabetes symptoms. Once again, however,

the ALJ relied upon a record fact to imply a “suggestion” that

the record does not support. Specifically, the ALJ found that

Chambers “declined [to] consider the insulin pump, which suggests

that her symptoms are controlled with needle therapy.” (Id. at

20) (emphasis added). But the transcript paints a different

picture. Chambers testified that the possibility of mechanical

failure of the pump caused her stress which would be

counterproductive. (Id. at 48-9). There was nothing in her

testimony to suggest that her decision to forego an insulin pump

8 was a reflection of how well her symptoms were controlled. The

ALJ supported his inference with reference to Chambers’s

statement that her doctor told her that “if insulin or needle

therapy was working for me, that would be fine.” (Id. at 48).

But given the laundry list of Chambers’s diabetes-related

problems filling the record, i.e., evidence that her therapy

wasn’t necessarily “working,” the ALJ’s conclusion improperly

takes her statement out of context. See Mounce v. Astrue,

(finding error for ALJ to lift phrase “spectacularly

well” from physician’s notes without considering context of

remarks).

Chambers next argues that the ALJ improperly ignored a

letter from her previous employer that would have corroborated

Dr. Beisswenger’s opinion. In the letter, John Herrick,

President of Excalibur Shelving Systems, reported that Chambers’s

diabetes symptoms caused her to work shorter days than normal at

her box assembly job, as on “many . . . days she would become

dizzy, weak, and unable to continue her day.” (Admin. R. at

208). Ultimately, Herrick said in the letter, he had to

terminate Chambers’s employment because she could not be

“consistent and reliable.” (Id.). The government does not

explicitly dispute that it was error to ignore Herrick’s letter

9 entirely.3 Instead, it argues that the error was harmless

because the ALJ concluded that the objective medical evidence

contradicted Herrick’s (and Chambers’s and Dr. Beisswenger’s)

claim that Chambers could not maintain a schedule. But where the

ALJ explicitly concluded that “the record does not indicate the

claimant would be unable to maintain a schedule or that her

symptoms regularly interfere with her functioning to such an

extent that she could not present for work on a regular basis”

(AR-19), the court does not consider the error harmless. See

Nguyen v. Chater,

(1st Cir. 1999) (observing that

ALJ’s findings of fact “are not conclusive when derived by

ignoring evidence . . . .”).4

3 Such an argument would have little likelihood of success. See Phelps v. Astrue,

(noting that an ALJ's failure to give reasons for disregarding the claimant’s husband’s testimony was error and proceeding to consider harmlessness). 4 The ALJ also appears to have selectively ignored part of the opinion of a consultatitve examiner, clinical psychologist Edouard Carignan, who concluded that Chambers “cannot be relied upon to maintain attendance and a schedule.” (Admin. R. at 270). While the ALJ noted this finding, he rejected it because: 1) in his view, it was based on self-reporting and not clinical findings; 2) the report did not indicate any difficulty in concentration during the examination; and 3) Chambers showed up on time for the examination. The first two conclusions are belied by the report, in which Dr. Carignan noted the clinical finding that Chambers scored lower than would be expected on one test, and became “confused” on another and needed prompting to get back on task. (Id. at 268). As to the ALJ’s third point, it appears he extrapolated Chambers appearing as scheduled for her appointment with Dr. Carignan into a finding that the record failed to document “difficulty . . . presenting on time for scheduled appointments.” However, the scheduling issues are

10 Against this legal and factual backdrop, the court finds

that the ALJ erred in giving Dr. Beisswenger’s opinion only

“little weight.”

B. RFC

Dr. Beisswenger did not provide any opinion with respect to

the physical components of Chambers’s RFC, such as lifting,

sitting, standing and walking, instead suggesting that a physical

therapist would be more appropriate to perform that analysis.

The ALJ apparently based the physical component of his RFC

finding on the report of the single decisionmaker (AR-17, 56-

78).5 A single decisionmaker is an employee of the Social

Security Administration who has no medical credentials. See

Stratton v. Astrue,

, 138 n. 2 (D.N.H. 2012)

(citing Goupil v. Barnhart, No. 03–34–P–H,

, at

*2 n. 2 (D. Me. Oct. 31, 2001)). That opinion is entitled to no

weight.

; see also Levesque v. Colvin

,

apparent from the Herrick letter, discussed supra, and Dr. Beisswenger’s opinion. The fact that Chambers showed up as scheduled for a single appointment is not “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

(1971) (quotations omitted). 5 The ALJ did not specifically indicate the source of his physical RFC findings. His findings, however, appear to be the same as those of the single decisionmaker. Moreover, there are no other sources of a physical RFC in the record.

11 2.6 Here, by relying on the single decisionmaker, the ALJ

“‘effectively substituted his own judgment for medical opinion.’”

Larocque v. Colvin,

(quoting Alcantara v.

Astrue,

(1st Cir. 2007)). This was error,

for an ALJ “cannot assess the claimant’s RFC himself. . . .”

Levesque, at 2–3.

IV. Conclusion

For the foregoing reasons, the court finds that the ALJ

improperly weighted the opinion of claimant’s treating physician

and improperly assessed her RFC. Chambers’s motion to reverse7

is therefore GRANTED and the Commissioner’s motion to affirm8 is

DENIED. The case is remanded to the SSA for further

consideration consistent with this Order. The clerk shall enter

judgment accordingly and close the case.

6 In some cases of relatively little physical impairment an ALJ “permissibly can render a commonsense judgment about functional capacity even without a physician's assessment.” Levesque

. But that is not the case here (and the government does not argue otherwise). 7 Doc. no. 7. 8 Doc. no. 10.

12 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: February 16, 2016

cc: Ruth Dorothea Heintz, Esq. Terry L. Ollila, AUSA

13