UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Laura Hatch

v. Case No. 15-cv-251-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Laura Hatch moves to

reverse the Acting Commissioner’s decision to deny her

application for supplemental security income, or SSI, under

Title XVI of the Social Security Act,

. The

Acting Commissioner, in turn, moves for an order affirming her

decision. For the reasons that follow, this matter is remanded

to the Acting Commissioner for further proceedings consistent

with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g) (setting out the standard of review for

decisions on claims for disability insurance benefits); see also

(c)(3) (establishing § 405(g) as the standard of

review for SSI decisions). However, the court “must uphold a

denial of social security . . . benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement1 is part of the court’s record and will be

summarized here, rather than repeated in full.

1 Document no. 11.

3 In June of 2011, Hatch went to the emergency room with

symptoms of what was subsequently diagnosed as multiple

sclerosis (“MS”).2 She initially spent five days in

Massachusetts General Hospital (“MGH”), and was discharged to a

rehabilitation hospital, where she spent nearly a month. In

between her two hospitalizations, Hatch saw Dr. Eric Klawiter at

the MGH Multiple Sclerosis Clinic, and continued to treat with

him until July of 2012. In September of 2011, shortly after she

was discharged from the rehabilitation hospital, Hatch began

seeing Dr. Joann Buonomano, a family practitioner, as her

primary care provider. In March of 2013, Dr. Klawiter referred

Hatch to Dr. Ann Cabot, another specialist in MS. Dr. Cabot, in

turn, saw Hatch in March of 2013 and again in January of 2014.

In addition to MS, Hatch has been diagnosed with obesity,

depression, anxiety, and a learning disability.

2 Multiple sclerosis is a “common demyelinating disorder of the central nervous system, causing patches of sclerosis (plaques) in the brain and spinal cord.” Stedman’s Medical Dictionary 1733 (28th ed. 2006). Its “symptoms include visual loss, diplopia, nystagmus, dysarthria, weakness, paresthesias, bladder abnormalities, and mood alterations . . . and clinically the symptoms show exacerbations and remissions.”

4 The record includes five opinions concerning Hatch’s

residual functional capacity (“RFC”).3 Three of those opinions

are relevant to the issues discussed in this order: (1) a

Physician/Clinician Statement of Capabilities completed in

August of 2012 by Dr. Buonomano; (2) a physical RFC assessment

prepared in October of 2012 by a state-agency consultant, Dr.

Hugh Fairley, based upon a review of the record;4 and (3) a

Physical Impairment Medical Source Statement completed in

January of 2014 by Dr. Buonomano. In January of 2014, Dr.

Klawiter was asked to complete a Multiple Sclerosis Medical

Source Statement on Hatch, but he declined to do so, explaining

that he had not seen Hatch for 18 months. While Hatch has

submitted treatment records from Dr. Cabot, the record does not

include an RFC assessment from her either.

3 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite his limitations.”

(a)(1).

4 The record before Dr. Fairley included “no indication that there [was] medical or other opinion evidence.” Tr. 96. Thus, there is no indication that Dr. Fairley ever considered Dr. Buonomano’s 2012 opinion when he assessed Hatch’s RFC.

5 In her evaluation of Hatch’s physical capacities, completed

in August of 2012, Dr. Buonomano indicated a diagnosis of

multiple sclerosis. She opined that with normal breaks, Hatch

could sit for a maximum of two hours a day, stand for a maximum

of two hours a day, and walk for a maximum of two hours a day.

In addition, Dr. Buonomano ascribed a variety of exertional,

postural, manipulative, and environmental limitations. She also

opined that while Hatch was capable of participating in work-

related activities, she could do so for less than ten hours per

week. Finally, Dr. Buonomano stated that the restrictions she

placed on Hatch’s ability to work should remain in place for 12

months.

Approximately two months after Dr. Buonomano completed her

evaluation, Dr. Fairley conducted his RFC assessment. Like Dr.

Buonomano, Dr. Fairley identified exertional, postural, and

environmental limitations, but he identified no manipulative

limitations. With respect to exertional limitations, Dr.

Fairley opined that Hatch was able to sit (with normal breaks)

for about six hours in an eight-hour workday and was able to

stand and/or walk (with normal breaks) for two hours in an

eight-hour workday. In support of his postural limitations, Dr.

Fairley noted Hatch’s diagnosis of MS and also said this: “Easy

6 fatigueability is her main problem.” Administrative Transcript

(hereinafter “Tr.”) 97.

In January of 2014, Dr. Buonomano provided a second medical

opinion. In her Physical Impairment Medical Source Statement,

Dr. Buonomano indicated that she had seen Hatch every three to

six months for the previous two years, starting on January 6,

2012.5 She indicated diagnoses of MS, depression, and a learning

disability. Under the heading “Prognosis,” she wrote:

“Progressive decline.” Tr. 860. Dr. Buonomano described

Hatch’s symptoms this way: “Pain, numbness, weakness on [left]

side, both upper [and] lower extremities, [e]xtreme fatigue,

headaches.”

Dr. Buonomano further stated: “Symptoms are

random, can be very severe or moderate. More bad days than good

days.”

With regard to Hatch’s functional capacity, Dr.

Buonomano opined that: (1) Hatch’s “experience of pain or other

symptoms [was constantly] severe enough to interfere with

attention and concentration needed to perform even simple work

tasks,” Tr. 861; (2) Hatch was “[i]ncapable of even ‘low stress’

jobs,” id.; (3) she could sit (with normal breaks) for less than

two hours in an eight-hour workday; (4) she could stand/walk

5 The record shows that Hatch began seeing Dr. Buonomano in September of 2011.

7 (with normal breaks) for less than two hours in an eight-hour

workday; (5) she would need three to five unscheduled breaks

each day; and (6) she would be absent from work more than four

days a month as a result of her impairments or treatment for

them. When asked whether Hatch would have good days and bad

days, Dr. Buonomano responded:

MS is a relapsing disease that is unpredictable and results in periods of incapacity. In addition, [Hatch] has total left-sided weakness, pain, and numbness from the disease.

Tr. 863. Finally, in response to a question about other

limitations that would affect Hatch’s ability to work on a

sustained basis at a regular job, Dr. Buonomano wrote: “She

cannot work in any extreme environment. She is susceptible to

vision changes, randomly. She is not capable of regular

employment.” Tr. 864.

After the Social Security Administration denied Hatch’s

claim, she received a hearing before an Administrative Law Judge

(“ALJ”). At the hearing, the ALJ heard testimony from a

vocational expert (“VE”). In response to hypothetical questions

based largely upon the RFC assessed by Dr. Fairley, the VE

testified that a person with those limitations could perform the

jobs of surveillance system monitor, addressing clerk, and

8 document preparer. Rather than asking a hypothetical question

incorporating the more restrictive limitations from Dr.

Buonomano’s RFC assessment, the ALJ observed: “I think further

limitations would be tied to the medical source statement [i.e.,

Dr. Buonomano’s 2012 opinion] and I think that’s an obvious

result there, so I won’t ask that.” Tr. 90.

The ALJ issued a decision that includes the following

relevant findings of fact and conclusions of law:

2. The claimant has the following severe impairments: multiple sclerosis; headaches; obesity; depression; and anxiety (20 CFR 416.920(c)).

. . . .

3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

. . . .

4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a), except she is limited to lifting/carrying up 5 pounds frequently and 10 pounds occasionally with her non-dominant left hand; and pushing/pulling on an occasional basis with her left side. She is unable to climb ladders, rope[s] or scaffolds, and she is limited to occasional climbing of ramps and stairs. She is able to frequently stoop, and occasional[ly] crouch, crawl and kneel. She is able to frequently handle and feel with her left hand, and [perform] no repetitive use of her left hand for

9 manipulation. She is limited to occasional use of foot controls with her left foot. She must avoid unprotected heights and prolonged exposure to dangerous, moving machinery. She is limited to simple, routine and repetitive work, in an environment without fast-paced production requirements. She is able to handle routine workplace changes.

. . . .

9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

Tr. 16, 17, 17, 24.

III. Discussion

A. The Legal Framework

To be eligible for supplemental security income, a person

must be aged, blind, or disabled, and must meet certain

requirements pertaining to income and assets.

(a). The only question in this case is whether Hatch was

disabled between June 26, 2012, and March 14, 2014.

To decide whether a claimant is disabled for the purpose of

determining eligibility for SSI benefits, an ALJ must employ a

five-step process. See

.

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe

10 impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

11 B. Hatch’s Claims

Hatch claims that the ALJ erred by: (1) using his lay

knowledge to assess both her mental and physical RFCs; (2)

failing to consider her back pain in combination with her other

impairments when determining her RFC; and (3) failing to

articulate good reasons for giving limited weight to Dr.

Buonomano’s 2014 opinion. While it is perhaps a close question,

Hatch’s third claim is persuasive, and dispositive.

The court begins by acknowledging that under the

circumstances of this case, Dr. Buonomano’s 2012 opinion is not

entitled to controlling weight,6 and Hatch does not argue to the

contrary. Still, under the regulations governing the evaluation

of SSI claims, an opinion from an acceptable medical source who

has treated a claimant is usually entitled to substantial

weight.7 As the regulations explain:

Generally, we give more weight to opinions from [a claimant’s] treating sources, since these sources are likely to be the medical professionals most able to

6 Dr. Buonomano’s opinion is not entitled to controlling weight because it is inconsistent with Dr. Fairley’s opinion. See

(c)(2) (explaining that a treating-source opinion is entitled to controlling weight if, among other things, it “is not inconsistent with the other substantial evidence in [the claimant’s] case record”).

7 All agree that Dr. Buonomano qualifies as an acceptable medical source under

(a)(1).

12 provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone . . . .

(c)(2); see also Social Security Ruling

(“SSR”) 96-2p,

, at *4 (S.S.A. July 2, 1996) (“In

many cases, a treating source’s medical opinion will be entitled

to the greatest weight and should be adopted, even if it does

not meet the test for controlling weight.”). Where, as in this

case, a treating source’s medical opinion is not entitled to

controlling weight, the ALJ must “give good reasons . . . for

the weight [he] give[s] [the] treating source’s opinion.”

(c)(2). Moreover, “the [SSI] regulations . . .

presuppose that [the opinions of] nontreating, nonexamining

sources [such as Dr. Fairley in this case] may override treating

doctor opinions, provided there is support for the result in the

record.” Shaw v. Sec’y of HHS,

,

, at

*4 (1st Cir. 1994) (unpublished table decision).

To determine the amount of weight to give a treating

source’s opinions, an ALJ should consider: (1) the length of

the treatment relationship and the frequency of examination; (2)

the nature and extent of the treatment relationship; (3)

supportability; (4) consistency with the record as a whole; (5)

13 the medical specialization of the person giving the opinion; and

(6) other factors that tend to support or contradict the

opinion.8 See

(c)(2)-(6). As for how to

determine whether an ALJ has given good reasons for the amount

of weight he has assigned a treating source’s opinion, Judge

McCafferty recently pointed out:

To meet the “good reasons” requirement, the ALJ’s reasons must be both specific, see Kenerson v. Astrue, No. 10–CV–161–SM,

, at *4 (D.N.H. May 20, 2011) (citation omitted), and supportable, see Soto–Cedeño v. Astrue,

(1st Cir. 2010). In sum, the ALJ’s reasons must “offer a rationale that could be accepted by a reasonable mind.” Widlund v. Astrue, No. 11–cv–371–JL,

, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09–11858,

, at *4 (D. Mass. Mar. 21, 2011), report and recommendation adopted by

(D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15-cv-005-LM,

, at *6

(D.N.H. Aug. 27, 2015). Regarding the specificity requirement,

the notice of the . . . decision must contain specific reasons for the weight given to the treating source’s medical opinion, supported by the 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.

8 As examples of “other factors,” the regulations identify: (1) the source’s understanding of the SSA’s disability programs and evidentiary requirements; and (2) “the extent to which [the] acceptable medical source is familiar with the other information in [a claimant’s] case record.”

(c)(6).

14 SSR 96-2p,

, at *5.

In his decision, the ALJ explained the weight he gave to

Dr. Buonomano’s 2014 opinion this way:

I have given limited weight to the opinion of the claimant’s primary care doctor, Joan [sic] Buonomano, M.D. Dr. Buonomano, in a check-off form, opines that the claimant is not capable of “regular employment” and that she would likely miss at least four days per month due to her impairments. She indicates the claimant has total left sided weakness and numbness from MS, and that she has significant limitations with reaching, handling and fingering. She opines that the claimant is limited to lifting/carrying less than 10 pounds, and would need to take unscheduled breaks during the workday. I have given her opinion limited weight because it is inconsistent with her own treatment records. The claimant’s treatment records do not show disabling physical symptoms due to MS or other impairments. Indeed, the records of Dr. Buonomano show mostly normal exams, with nonfocal motor examination, no spinal tenderness, normal mood and appropriate affect. Her opinion is also inconsistent with claimant’s recent medical records, which show mostly stable symptoms with medication.

Tr. 22 (citations to the record omitted). In contrast to the

limited weight he gave Dr. Buonomano’s opinion, the ALJ gave

“significant weight to the assessment of the State agency

medical consultant, Hugh Fairley, M.D.”

The court begins by noting that while the ALJ criticized

Dr. Buonomano’s opinion for being presented “in a check-off

form,” Tr. 22, Dr. Buonomano included more narrative content on

that form than Dr. Fairley included in the RFC assessment to

15 which the ALJ gave significant weight. That is not the only

problem with the ALJ’s explanation.

Moving on, the ALJ correctly identified Dr. Buonomano as

Hatch’s primary care doctor, but he said nothing about the

length, nature, or extent of the treatment relationship, or the

frequency with which Dr. Buonomano examined Hatch. See

(d)(2)(i) & (ii). Dr. Buonomano’s statement

indicates that she had seen Hatch every three to six months

since January of 2012,9 yet the ALJ afforded greater weight to

the opinion of a physician who never examined Hatch, who appears

not to have considered Dr. Buonomano’s 2012 opinion, and who

rendered his opinion on the effects of a progressive disease

about 15 months before Dr. Buonomano gave her second opinion on

Hatch’s RFC.

Substantively, the ALJ gave two reasons for assigning

limited weight to Dr. Buonomano’s opinion: the opinion’s

inconsistency with Dr. Buonomano’s treatment records, and its

9 According to the parties’ Joint Statement of Material Facts, Dr. Buonomano examined Hatch six times before she rendered her 2012 opinion and examined her four more times before she rendered her 2014 opinion.

16 inconsistency with Hatch’s recent medical records. Each

explanation is problematic.

Regarding the first one, the ALJ said that Dr. Buonomano’s

opinion was inconsistent with treatment records showing “mostly

normal exams, with nonfocal motor examination, no spinal

tenderness, normal mood and appropriate affect.” Tr. 22 (citing

three of Dr. Buonomano’s ten treatment records). However, the

ALJ did not indicate how nonfocal motor examinations,10 a lack of

spinal tenderness, normal mood, and appropriate affect were

inconsistent with an opinion that Hatch would be absent from

work more than four days per month due to the symptoms Dr.

Buonomano identified in her statement, which include pain,

numbness, weakness on Hatch’s left side (including both

extremities), extreme fatigue, and headaches. Because the ALJ

did not supportably identify any inconsistency between Dr.

Buonomano’s opinion and her treatment records, the purported

10The court does not know what “nonfocal motor examination” means, either in functional terms or otherwise, and the ALJ’s decision provides no clarification. That makes it difficult for the court to accept the proposition that Hatch’s nonfocal motor examinations are inconsistent with Dr. Buonomano’s opinion.

17 inconsistency on which the ALJ relied is not a good reason for

discounting Dr. Buonomano’s opinion.11

Turning to the ALJ’s second explanation for giving limited

weight to Dr. Buonomano’s opinion, the ALJ said that opinion was

inconsistent with Hatch’s “recent medical records, which show

mostly stable symptoms with medication.” Tr. 22. Because the

ALJ did not identify the “recent medical records” to which he

was referring, his explanation is, necessarily, neither specific

nor supported by the case record. See Jenness,

,

at *6. That said, if the “recent medical records” to which the

ALJ referred were those generated by Hatch’s visit to Dr. Cabot

in January of 2014, Dr. Cabot’s office note states, in pertinent

part: “As far as symptoms she feels like she is getting worse

over the past year . . . . If she is tired she notices more

fatigue.” Tr. 882. The note continues:

Fatigue has been an issue, she has noted poor sleep. She feels like all she wants to do is sleep. She has not pursued any treatment for this. Nothing has made this better or worse.

11Moreover, Dr. Buonomano’s identification of fatigue as a symptom of Hatch’s MS is consistent with Dr. Fairley’s observation that “[e]asy fatigueability [was Hatch’s] main problem,” Tr. 97, and is also consistent with testimony at Hatch’s hearing, offered by both Hatch and her father, to the effect that Hatch was often unable to complete tasks she had started, such as preparing meals or washing dishes, due to a lack of energy resulting from her MS.

18

Finally, under the heading “Impression & Recommendations,”

Dr. Cabot wrote:

I have encouraged her to stay hopeful that we can continue to work on her symptoms, her biggest complaint is that of fatigue. She has not yet had a sleep study nor has she ever tried medication or exercise to work on her fatigue issues.

Tr. 884. Whatever else Dr. Cabot’s notes may say, they do not

describe “mostly stable symptoms with medication.” Tr. 22.

The bottom line is this. Given Dr. Buonomano’s prognosis

for progressive decline, the chronology of the medical opinions

at issue, the content of the relevant medical records, and the

requirements of the governing regulations, the court cannot say

that the ALJ offered a rationale that could be accepted by a

reasonable mind for giving greater weight to Dr. Fairley’s

opinion than he gave to Dr. Buonomano’s 2014 opinion. On that

basis, this case must be remanded.

IV. Conclusion

For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision12 is denied, and

Hatch’s motion to reverse that decision13 is granted to the

12 Document no. 12.

19 extent that this matter is remanded to the Acting Commissioner

for further proceedings, pursuant to sentence four of

(g). The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

__________________________ Joseph Laplante United States District

Date: August 5, 2016

cc: Laurie Smith Young, Esq. Robert J. Rabuck, AUSA

13 Document no. 8.

20