UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carolyn Lee Hunt

v. Civil No. 16-cv-159-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Carolyn Hunt moves to

reverse the Acting Commissioner’s decision to deny her

applications for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. 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 DIB

decisions); 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

2 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 statement, document no. 13, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Hunt filed applications for DIB and SSI on January 3, 2013,

claiming to have become disabled on December 22, 2012. In her

applications, she identified the following medical conditions as

limiting her ability to work: fibromyalgia, fatigue, spinal

issues, arthritis, and carpel tunnel syndrome in both hands.

3 Hunt has been diagnosed with a variety of physical and

mental conditions including: adjustment disorder, depression,

posttraumatic stress disorder (“PTSD”), brain injury,

narcolepsy, degenerative disk and degenerative joint disease of

the cervical spine, cervical spondylosis with myelopathy, carpal

tunnel syndrome of both hands, polyarthralgia,1 paresthesia,2

tremor, generalized muscle weakness, myopathy not otherwise

specified,3 persistent hypersomnia, snoring, post concussive

syndrome, obstructive sleep apnea, insomnia, chronic

musculoskeletal pain, and fibromyalgia.

“Fibromyalgia is a disorder of unknown cause characterized

by chronic widespread aching and stiffness.” Stedman’s, supra

note 1, at 725. In addition, fibromyalgia is “[u]sually

associated [with] fatigue, a sense of weakness or inability to

perform certain movements, paresthesia, difficulty sleeping, and

headaches.” Id. Finally:

1 Polyarthralgia is “arthralgia in many different joints.” Dorland’s Illustrated Medical Dictionary 1487 (32nd ed. 2012). Arthralgia is “[p]ain in a joint.” Stedman’s Medical Dictionary 159 (28th ed. 2006).

2 Paresthesia is “[a] spontaneous abnormal usually nonpainful sensation (e.g., burning, pricking); may be due to lesions of both the central and peripheral nervous systems.” Stedman’s, supra note 1, at 1425.

3 Myopathy is “[a]ny abnormal condition or disease of the muscular tissues.” Stedman’s, supra note 1, at 1274.

4 The American College of Rheumatology has established diagnostic criteria that include pain on both sides of the body, both above and below the waist, as well as in an axial distribution (cervical, thoracic, lumbar spine, or anterior chest). Additionally, point tenderness must be found in at least 11 of 18 specified sites.

Id.

In February 2013, Hunt’s primary care provider, Dr. David

Nelson, referred Hunt to Dr. Julia Bolding, a rheumatologist, to

confirm his diagnosis of fibromyalgia. See Administrative

Transcript (hereinafter “Tr.”) 419. Under the heading

“Assessments,” Dr. Bolding wrote:

1. Fibromyalgia – 7.29.1 (Primary), > 11 of 18 [fibromyalgia] tender points positive, central pain amplification seems to be the primary issue for her. She states she wants diagnosis confirmed for Disability. As I understand it, her disability is felt to be related to cognitive impairment from a closed head injury and fibromyalgia. I do not know what percentage each diagnosis is felt to be contributing to her disability, but I do not consider fibromyalgia an appropriate reason for disability. Data has shown that patients with fibromyalgia do better if they remain in the workforce.

Tr. 421.

With respect to Hunt’s physical residual functional

capacity (“RFC”),4 the record includes three opinions: (1) an RFC

assessment by Dr. Jonathan Jaffe, a state agency medical

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

(a)(1) & 416.945(a)(1).

5 consultant who reviewed Hunt’s medical records, but did not

examine or treat her; (2) a Functional Capacity Evaluation

(“FCE”) Summary prepared by Catherine Colby (a physical

therapist) and Hilary Bradshaw (an occupational therapist); and

(3) a Fibromyalgia Medical Source Statement completed by Dr.

Nelson. The court describes each opinion in turn.

In his RFC assessment, Dr. Jaffe opined that Hunt could:

(1) lift and/or carry 20 pounds occasionally and 10 pounds

frequently; (2) stand and/or walk (with normal breaks) for about

six hours in an eight-hour workday; (3) sit (with normal breaks)

for about six hours in an eight-hour workday; and (4) push

and/or pull the same amounts she could lift and/or carry. With

regard to postural limitations, Dr. Jaffe opined that Hunt could

frequently balance and could occasionally climb ramps, stairs,

ladders, ropes, and scaffolds; stoop; kneel; crouch; and crawl.

He identified no manipulative, visual, communicative, or

environmental limitations.

In their FCE Summary, Colby and Bradshaw opined that Hunt

could lift: (1) 20 pounds infrequently and 10 pounds frequently,

from floor to knuckle; and (2) 15 pounds infrequently and 10

pounds frequently from knuckle to shoulder height, and from

shoulder height to overhead. They also opined that Hunt had no

problems with sitting, standing, walking, or climbing stairs.

6 Finally, in his Fibromyalgia Medical Source Statement, Dr.

Nelson stated that Hunt’s fibromyalgia had lasted or could be

expected to last at least twelve months, and gave the following

prognosis: “Poor – doubt she will recover/improve.” Tr. 617.

Regarding Hunt’s functional limitations in a work setting, Dr.

Nelson opined that she: (1) did not “have the stamina and

endurance to work an easy job 8 hours per day 5 days per week

(with normal breaks every two hours),” id.; (2) would need to

take unscheduled breaks at least hourly due to muscle weakness,

chronic fatigue, pain, paresthesia, and numbness; (3) could not

tolerate prolonged sitting; (4) was likely to be off task at

least 25 percent of a typical workday; (5) was likely to

experience good days and bad days; and (6) was likely to be

absent from work more than four days per month due to her

fibromyalgia or treatment for it.

With respect to Hunt’s mental RFC, the record includes four

opinions: (1) a Mental Health Evaluation report prepared by Dr.

Trina Jackson, after she performed a consultative examination;

(2) a mental RFC assessment by Dr. Craig Stenslie, a state

agency psychological consultant who reviewed Hunt’s medical

records, but did not examine or treat her; (3) a Medical Source

Statement of Ability to Do Work-Related Activities (Mental)

completed by Dr. Nelson; and (4) a Mental Impairment

7 Questionnaire completed by Dr. Erinn Fellner, who had seen Hunt

in May 2014, on a referral from Dr. Nelson. Again, the court

describes each opinion in turn.

After performing a consultative examination, Dr. Jackson

diagnosed Hunt with PTSD and major depressive disorder. In her

report, she described Hunt’s current level of functioning in

five areas, two of which are relevant to the issues before the

court:

Understanding and Remembering Instructions: . . . Ms. Hunt’s memory appears to be intact overall, though she may notice specific declines. She reported that her cognitions become fuzzy in the afternoon, which is normal given her history of brain injury and TBIs.5 Based on the available evidence and in my clinical opinion, she is able to function appropriately, independently, effectively, and consistently in the morning, though she is unable to do so later in the afternoon.

Concentration and Task Completion: . . . Ms. Hunt’s concentration and attention appeared intact, but again are likely negatively impacted by the early afternoon. Based on the available evidence and in my clinical opinion, she is able to function appropriately, independently, effectively, and consistently in this domain, though she is unable to do so later in the afternoon.

Tr. 317 (emphasis in the original).

In his mental RFC assessment, Dr. Stenslie opined that Hunt

had no limitations on her ability to understand and remember and

5 TBI is an abbreviation for “traumatic brain injury.” Dorland’s, supra note 1, at 1874.

8 had no social interaction limitations. With regard to sustained

concentration and persistence, Dr. Stenslie opined that Hunt was

not significantly limited in five of eight listed abilities, but

was moderately limited in her abilities to: (1) carry out

detailed instructions; (2) perform activities within a schedule,

maintain regular attendance, and be punctual within customary

tolerances; and (3) complete a normal workday and workweek

without interruptions from psychologically-based symptoms and to

perform at a consistent pace without an unreasonable number and

length of rest periods. With regard to adaptation, Dr. Stenslie

opined that Hunt was not significantly limited in three of four

listed abilities, but was moderately limited in her ability to

respond appropriately to changes in the work setting.

In his Medical Source Statement (Mental), Dr. Nelson opined

that Hunt had mild limitations in five of ten listed abilities

(understanding and remembering simple instructions, carrying out

simple instructions, interacting appropriately with the public,

interacting appropriately with supervisors, and interacting

appropriately with co-workers), moderate limitations in two

abilities (making judgments on simple work-related decisions and

responding appropriately to usual work situations and to changes

in a routine work setting), and marked limitations in three

abilities (understanding and remembering complex instructions,

9 carrying out complex instructions, and making judgments on

complex work-related decisions).

In her Mental Impairment Questionnaire, Dr. Fellner opined

that Hunt had mild limitations in three of sixteen mental

abilities and aptitudes necessary to do unskilled work, moderate

limitations in seven abilities, and marked limitations in six

abilities. Specifically, Dr. Fellner opined that claimant had

marked limitations in: (1) maintaining attention for two-hour

segments; (2) maintaining regular attendance and being punctual

within customary, usually strict tolerances; (3) working in

coordination with or proximity to others without being unduly

distracted; (4) completing a normal workday and workweek without

interruptions from psychologically-based symptoms; (5)

performing at a consistent pace without an unreasonable number

and length of rest periods; and (6) dealing with normal work

stress. She supported those opinions with this narrative:

Due to high anxiety symptoms, cognitive fatigue and poor sustained attention patient [is] unable to maintain attention for tasks greater than 30 minutes, unable to tolerate even normal workplace stress, and unable to maintain pace or schedule without disruptions due to psychologic[al] symptoms.

Tr. 623. With respect to functional limitations, Dr. Fellner

opined that Hunt had: (1) moderate restrictions on her

activities of daily living; (2) marked difficulties in

maintaining both social functioning and concentration,

10 persistence or pace; and (3) four or more episodes of

decompensation, each of at least two weeks duration, over the

previous 12 months. Finally, Dr. Fellner opined that Hunt would

miss more than four days of work each month because of her

mental impairments or treatment for them.

After the Social Security Administration (“SSA”) denied

Hunt’s applications for benefits, she received a hearing before

an Administrative Law Judge (“ALJ”). Subsequently, the ALJ

issued a decision that includes the following relevant findings

of fact and conclusions of law:

3. The claimant has the following severe impairments: depression; anxiety; traumatic brain injury; fibromyalgia; narcolepsy; and bilateral carpal tunnel syndrome (20 CFR 404.1520(c) and 416.920(c)).

. . . .

4. The clamant 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). She is able to perform frequent balancing, and occasional stooping, kneeling, crouching, crawling, and climbing [of] ramps, stairs, ladders, ropes and scaffolds. She is able to frequently handle/grasp bilaterally, and she must avoid all hazards, such as unprotected heights and dangerous machinery. She is limited to simple,

11 unskilled work. She is able to maintain attention and concentration for two-hour increments throughout an eight-hour workday, and she is able to sustain occasional social interaction with coworkers, supervisors and the general public.

. . . .

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

. . . .

10. 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 404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 29, 31-32, 36, 37.

Based upon a response to a hypothetical question he posed

to a vocational expert (“VE”) that incorporated the RFC recited

above, the ALJ determined that Hunt was able to perform the jobs

of assembler of plastic hospital parts, marker, and electric

accessories assembler.

After getting an answer to his first hypothetical question,

the ALJ asked the VE a second question that posited the

following additional limitations:

[T]he person is limited to only occasionally handling and grasping; is only able to sit, stand, or walk in any combination for no more than 46 [presumably “four to six”] hours in any eight-hour workday; would require at least two unscheduled breaks of approximately 20 to 30 minutes; would be absent from work approximately three [or] more times per month; and would be off task approximately 15 to 20 percent of the workday. Would those additional limitations,

12 either singularly or in combination, allow for . . . any . . . work that exists in significant numbers in the regional or national economy?

Tr. 74. The VE testified that there were no jobs that a person

with those limitations could perform. Finally, in response to

questions from claimant’s counsel, the VE testified that there

were no jobs that a person could perform if he had any one of

the following limitations: (1) a need to take unscheduled five

minute breaks each hour; (2) “a marked limitation in the ability

to maintain concentration for two-hour segments,” Tr. 76; (3) “a

marked limitation in the ability to maintain regular attendance

and be punctual within customary, usually strict tolerances,”

id.; (4) “a marked limitation in the ability to perform at a

consistent pace without an unreasonable amount and length of

rest periods,” id.; (5) a 15 percent diminution, due to fatigue,

of “concentration and task completion, quality, independence,

and sustainability,” Tr. 78; and (6) a 15 percent diminution in

“attendance, punctuality, and decision-making,” Tr. 79.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible

13 for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether the ALJ correctly determined that Hunt was not

under a disability from December 22, 2012, through July 11,

2014, which is the date of the ALJ’s decision.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

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 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.

14 Chater,

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

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [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)).

B. Hunt’s Claims

Hunt challenges the ALJ’s decision on multiple grounds, but

this claim is dispositive: the ALJ erred in his consideration of

the opinions that Dr. Nelson expressed in his Fibromyalgia

Medical Source statement and that Dr. Fellner expressed in her

Mental Impairment Questionnaire.

Under the applicable regulations, the SSA, and by extension

an ALJ, is obligated to evaluate every medical opinion a

claimant submits. See

(c) & 416.927(c).

Medical opinions, in turn,

are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [her] symptoms, diagnosis and prognosis, what [she] can still do despite [her] impairment(s), and [her] physical or mental restrictions.

15

(a)(2) & 416.927(a)(2). As a general

matter,

the greatest weight should be placed on opinions from treating sources, with less weight placed on opinions from medical sources who merely examine a claimant, and the least weight of all on opinions from medical sources who have neither treated nor examined a claimant.

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

, at *6

(D.N.H. Aug. 27, 2015) (quoting McLaughlin v. Colvin, No.

14-cv-154-LM,

, at *5 (D.N.H. June 8,

2015)).

In addition to outlining the general principle stated

above, the SSA regulations further provide that

[i]f [an ALJ] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling weight.

(c)(2) & 416.927(c)(2). When an ALJ does

not give controlling weight to a treating source’s opinion, he

must still determine the amount of weight to give that opinion

by considering: (1) the length of the treatment relationship and

the frequency of examination; (2) the nature and extent of the

treatment relationship; (3) the supportability of the opinion;

(4) the consistency of the opinion with the record as a whole;

16 (5) the medical specialization of the source offering the

opinion; and (6) any other factors that may support or

contradict the opinion. See

(c)(2)-(6) &

416.927(c)(2)-(6). Indeed, “[i]n many cases, a treating

source’s opinion will be entitled to the greatest weight and

should be adopted, even if it does not meet the test for

controlling weight.” Social Security Ruling 96-2p,

, at *4 (S.S.A. July 2, 1996).

In any event, an ALJ must “always give good reasons . . .

in [his] notice of . . . decision for the weight [he] give[s] [a

claimant’s] treating source’s opinion.”

(c)(2) & 416.927(c)(2).

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,

, at *6.

1. Dr. Nelson’s Opinions

The ALJ gave little weight to the opinions expressed in Dr.

Nelson’s Fibromyalgia Medical Source Statement. Hunt claims

that the ALJ erred by failing to give controlling weight to

17 those opinions. The court finds that the ALJ did not provide

sufficient justification for discounting Dr. Nelson’s opinions.

The ALJ began his discussion of Dr. Nelson’s opinions by

describing them:

He opines that the claimant does not have the stamina and endurance to work “an easy job” for 8 hours per day, and that she would typically be off task at least . . . 25% or more of the workday. In addition, he opines that she would likely be absent from work at least 4 or more workdays per month.

Tr. 35. The ALJ explained his decision to give little weight to

Dr. Nelson’s opinions this way:

I have given his opinion regarding physical limitations and [claimant’s] inability to work a full day little weight because it is not supported by the medical evidence of record or the claimant’s reported daily activities. Although she has persistent fibromyalgia symptoms, the records do not reflect disabling levels of pain.

Tr. 36.

As a preliminary matter, it is clear that the ALJ

addressed, and discounted, Dr. Nelson’s opinions that claimant

lacked the stamina to work an eight-hour workday, and would be

off task up to 25 percent of any given workday, but it is not so

clear that the ALJ actually addressed Dr. Nelson’s opinion that

claimant would be absent from work four or more days per month.

Given the ALJ’s obligation to evaluate all medical opinions, see

(c) & 416.927(c), and the VE’s testimony

that absence from work for more than three days per month would

18 preclude any employment, see Tr. 74, 81, the ALJ’s apparent

failure to address Dr. Nelson’s opinion on that matter is a

problem.

Turning to the opinions from Dr. Nelson that the ALJ

clearly did evaluate, he mentioned both of the factors that must

be considered when determining whether to give controlling

weight to a treating source’s opinion, i.e., supportability and

consistency with the record as a whole. See

(c)(2) & 416.927(c)(2). The ALJ’s consideration of each

factor is problematic.

With regard to the first factor, supportability, the

regulations provide that the opinion of a treating source such

as Dr. Nelson is entitled to controlling weight if, among other

things, it “is well-supported by medically acceptable clinical

and laboratory diagnostic techniques.”

(c)(2) & 416.927(c)(2). The ALJ stated, in a conclusory

manner, that Dr. Nelson’s opinion was not supported by the

medical evidence of record. However, the medical evidence

documents both claimant’s complaints to Dr. Nelson about

multiple symptoms of fibromyalgia, including pain, stiffness,

weakness, and paresthesia, and Dr. Bolding’s determination that

Hunt exhibited tenderness at more than 11 of the 18 fibromyalgia

tender points. Regarding that evidence, the court of appeals

19 has explained that “‘a patient’s report of complaints, or

history, is an essential diagnostic tool’ in fibromyalgia

cases,” Johnson v. Astrue,

(1st Cir. 2010)

(per curiam) (quoting Green-Younger v. Barnhart,

(2d Cir. 2003)), and that “trigger points are the only

‘objective’ signs of fibromyalgia,”

Beyond that, the ALJ wrote that Dr. Nelson’s opinion was

not supported because “the records do not reflect disabling

levels of pain.” Tr. 36. Pain, however, is only one symptom of

fibromyalgia; there are others, such as “fatigue, a sense of

weakness . . ., paresthesia, difficulty sleeping, and

headaches.” Stedman’s, supra note 1, at 725. In his

Fibromyalgia Medical Source Statement, Dr. Nelson indicated that

Hunt had exhibited approximately 40 separate symptoms, signs,

and conditions associated with fibromyalgia. While eight of

them involved pain of some sort, Dr. Nelson noted other symptoms

unrelated to pain that could have an effect on a person’s

ability to work, including: cognitive dysfunction (“fibro fog”),

irritable bowel syndrome, muscle weakness, dizziness, frequent

urination, insomnia, hearing difficulties, fatigue, depression,

anxiety disorder, waking unrefreshed, numbness or tingling,

constipation, nausea, nervousness, blurred vision, diarrhea,

irritable bladder syndrome, chronic fatigue syndrome, panic

20 attacks, and hand tremor. See Tr. 615-16. In that same

statement, Dr. Nelson opined that Hunt needed hourly unscheduled

breaks due to pain, plus these other symptoms: muscle weakness,

chronic fatigue, and paresthesia/numbness. In short, under the

circumstances of this case, even if the records do not reflect

disabling levels of pain, that, alone, is insufficient to

support a determination that Dr. Nelson’s opinions were not

“well-supported by medically acceptable clinical and laboratory

diagnostic techniques.”

(c)(2) &

416.927(c)(2).

Turning to the second factor that must be considered when

determining whether to give controlling weight to a treating

source’s opinion, i.e., consistency with the record as a whole,

the ALJ stated that Dr. Nelson’s opinion was not “supported by .

. . the claimant’s reported daily activities.”6 Tr. 36. As with

the ALJ’s supportability analysis, his consistency analysis

lacks any specificity; nowhere did he identify the reports he

was talking about or identify information in such reports that

was inconsistent with Dr. Nelson’s opinion.

The record does include several reports on claimant’s daily

activities, but they do not support the ALJ’s conclusion. In

6 While couched in terms of “support,” the court interprets the ALJ’s statement as a comment on consistency.

21 the Function Report – Adult that Hunt submitted to the SSA, she

was asked to describe what she did from the time she woke up

until going to bed, and she gave this response:

This depends on how I feel. I do some sewing, some reading, watch TV. I must usually lie down to rest/sleep/alleviate pain in the afternoon from 1½ to 3 hrs. I walk downtown most days (bank, market, mail) – less than ½ mile total.

Tr. 230 (emphasis added). At her hearing, Hunt testified that

she: (1) has “extreme tiredness during the day,” Tr. 62; (2)

“tend[s] to kind of zone out,”

in the afternoon; (3) often

has to sit quietly or “lay down for an hour, hour and a half,”

to recover from her fatigue; and (4) has to lie down on a

daily basis, sometimes more than once, see Tr. 68. Plainly, Dr.

Nelson’s opinion that Hunt lacked the stamina and endurance to

work an easy job eight hours per day is consistent with those

reports.

The Acting Commissioner offers the following defense of the

ALJ’s evaluation of Dr. Nelson’s opinions:

[T]he ALJ did not merely cite a lack of objective findings . . ., the ALJ considered her subjective complaints of pain in determining her RFC. However, the ALJ found that Plaintiff’s symptoms were not as severe as alleged.

Doc. no. 11-1, at 10 (citation to the record omitted). While

the ALJ did find claimant’s statements about her symptoms to be

less than entirely credible, he did not identify his unfavorable

22 credibility assessment as a basis for discounting Dr. Nelson’s

opinion, and it is not for the Acting Commissioner to defend the

ALJ’s decision with rationales that the ALJ did not articulate.

See Letellier v. Comm’r of SSA, No. 13-cv-271-PB,

, at *8 (D.N.H. Mar. 11, 2014) (collecting cases); see

also Haggblad v. Astrue, No. 11-cv-028-JL,

, at

*13 (D.N.H. Nov. 17, 2011) (citing High v. Astrue, No. 10–cv–69–

JD,

, at *6 (D.N.H. Mar. 17, 2011); Dube v.

Astrue,

, 36 n.15 (D.N.H. 2011); Laplume v.

Astrue, No. 08–cv–476–PB,

, at *6 n.20 (D.N.H.

July 24, 2009) (“I cannot uphold the ALJ’s decision based on

rationales unarticulated in the record.”)), R & R adopted by

(Dec. 6, 2011).

In sum, the ALJ’s analysis of the factors identified in

(c)(2) & 416.927(c)(2), with respect to the

opinions Dr. Nelson expressed in his Fibromyalgia Medical Source

Statement, is inadequately specific and inadequately supported.

Accordingly, the ALJ gave insufficient justification for

determining that those opinions were not entitled to controlling

weight. See Jenness,

, at *6. That warrants a

remand.

The court has thus determined that this matter must be

remanded because of the way in which the ALJ considered

23 supportability and consistency, as those terms are defined in

(c)(2) & 416.927(c)(2). The court now turns

to the supportability analysis that must be undertaken under

subsection (c)(3) of those regulations when a treating source’s

opinion is not given controlling weight, but must still be

evaluated. According to that subsection of the regulations:

The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion.

(c)(3) & 416.927(c)(3). To the extent that

the ALJ determined that Dr. Nelson’s opinions did not meet that

standard of supportability, he was mistaken. In his

Fibromyalgia Medical Source Statement, Dr. Nelson specifically

identified claimant’s symptoms, diagramed her tender point

sites, and referred to both Dr. Bolding’s office note and the

FCE Summary authored by Colby and Bradshaw. In other words, Dr.

Nelson did present relevant evidence to support his opinions.

Whether Dr. Bolding’s office note and the FCE Summary actually

support Dr. Nelson’s opinions might be subject to legitimate

dispute. But it is for the ALJ, in the first instance, to

examine the evidence that Dr. Nelson cited in his opinion and

determine whether that evidence supports the opinion. In sum,

the manner in which the ALJ considered supportability under 20

(c)(3) & 416.927(c)(3) provides an independent

ground for remand.

Before moving on from Dr. Nelson’s Fibromyalgia Medical

Source Statement, the court has one final observation, related

to fibromyalgia, that may prove useful on remand. To support

his determination that claimant’s statements about her

fibromyalgia symptoms were not entirely credible, the ALJ said

this: “Significantly, [claimant’s] treating examining physician,

Julia Bolding, opines that she does not feel that the claimant’s

fibromyalgia is a basis for disability.” Tr. 33 (citation to

the record omitted). In point of fact, Dr. Bolding’s opinion

was not limited to claimant’s particular case of fibromyalgia

but, rather, extended to fibromyalgia in general: “I do not

consider fibromyalgia an appropriate reason for disability.”

Tr. 421. That opinion, as opposed to an opinion on the

functional effects of claimant’s fibromyalgia, has no place in a

proper consideration of Hunt’s application for benefits. Cf.

Haggblad,

, at *10 (“To the extent the ALJ

adopted Dr. Axline’s view that a claimant could never establish

disability due to fibromyalgia, because of the lack of objective

support for such a diagnosis, the ALJ was mistaken.”).

25 2. Dr. Fellner’s Opinions

The ALJ gave little weight to the opinions expressed in Dr.

Fellner’s Mental Impairment Questionnaire. Hunt claims that the

ALJ erred by failing to give great weight to those opinions.

The manner in which the ALJ evaluated Dr. Fellner’s opinions

suffers from the same infirmities of his evaluation of Dr.

Nelson’s opinions, and provides another ground for remand.

To begin, while the ALJ began his discussion of Dr.

Nelson’s opinions by describing them, he did not do so for the

opinions that Dr. Fellner expressed in her Mental Impairment

Questionnaire, which complicates things from the outset. Dr.

Fellner, like Dr. Nelson, opined that Hunt would be absent from

work more than four days per month due to her impairments. But,

while the ALJ at least acknowledged Dr. Nelson’s opinion on this

issue, he said nothing at all about Dr. Fellner’s opinion on it.

Thus, it is far from clear that the ALJ gave any consideration

to Dr. Fellner’s opinion on Hunt’s likely absence from work.

Be that as it may, the ALJ described his evaluation of Dr.

Fellner’s opinions this way:

I have given little weight to the opinion of Dr. Fellner because it is a conclusory opinion, with little evidence used to support the findings. It appears that Dr. Fellner’s treatment of the claimant has been limited. Also, it is inconsistent with the treatment records of the claimant which do not show marked limitations in social functioning or maintaining concentration, persistence and pace. The

26 claimant routinely socializes with others, and her notes consistently show pleasant and cooperative behavior. In addition, while she may have reported memory issues, there is no evidence to support marked limitation in her ability to maintain concentration, persistence and pace. She is able to carry out her daily activities independently, attend appointments and engage in hobbies such as sewing, reading and watching television.

Tr. 36.

The first sentence of the ALJ’s evaluation of Dr. Fellner’s

opinions calls them conclusory and refers to a lack of support.

But, it is not clear whether the ALJ was undertaking a

supportability analysis for the purposes of

(c)(2) & 416.927(c)(2), which pertain to the controlling

weight analysis, or for the purposes of

(c)(3) & 416.927(c)(3), which pertain to the weighing of

treating source opinions that have not been given controlling

weight. Either way, the ALJ’s determination that Dr. Fellner’s

opinions lack support is unfounded.

With respect to support from “medically acceptable clinical

and laboratory diagnostic techniques,”

(c)(2) & 416.927(c)(2), which is necessary to entitle a

treating source’s opinion to controlling weight, Dr. Fellner

completed her Mental Impairment Questionnaire less than a month

after she spent 90 minutes examining Hunt. In the progress note

that resulted from that examination, Dr. Fellner described the

27 findings of a mental status examination she administered to

Hunt:

Casually groomed with good hygiene. Normal psychomotor activity. Affect dysphoric, anxious, high arousal, prominent anger noted. No expansiveness. Minor lability and reactivity noted. No anhedonia or hopelessness. Speech fluent, normal rate and volume. Some word fining difficulties. No paraphasic errors. Alert. Oriented. Intelligence average. Quite distractible and poor sustained attention. Cognitive fatigue prominent. . . . No hallucinations, delusions, paranoia, or IOR. No dissociation. Some obsessional thinking. Passive [suicidal ideation] without plan or intent. No [homicidal ideation]. Insight regarding her deficits and symptoms intact. Accepting treatment and supports.

Tr. 509-10 (emphasis added).7 Then, under the heading

“Treatment,” Dr. Fellner offered the following observations

specific to each of three diagnoses:

Depression . . . Depressive symptoms have been severe and disabling interfering with her ability to cope with stress and engage socially as well as make decisions.

. . . .

PTSD . . . Disabled by poor coping, emotional dysregulation with stressors, poor socialization and poor task performance.

. . . .

Brain injury . . . She has significant cognitive difficulties with poor sustained attention, disorganization in her thinking, sensitivity to cognitive fatigue and overstimulation and difficulty

7 Dysphoria is “[a] mood of general dissatisfaction, restlessness, depression, and anxiety; a feeling of unpleasantness or discomfort.” Stedman’s, supra note 1, at 599.

28 making decision[s]. These cognitive symptoms may be exacerbated by her emotional problems and Narcolepsy, but [I] suspect head injury plays a role as well. Treatment of Narcolepsy has been of partial benefit but still with significant residual symptoms and based on prior functioning, she has shown a significant deterioration in functioning since head injury across life domains.

Tr. 510, 516. Leaving aside Dr. Fellner’s conclusions regarding

disability, which are entitled to no particular weight, see

(d)(1) & 416.927(d)(1), her observations do

link claimant’s functional deficits to specific medical causes.

The ALJ did not question the validity of Dr. Fellner’s

mental status examination. Thus, her report on that examination

would appear to satisfy the supportability requirement of

(c)(2) & 416.927(c)(2) with respect to Dr.

Fellner’s opinion that claimant was “unable to maintain

attention for tasks greater than 30 minutes.” Tr. 623. Such a

limitation, in turn, would preclude employment, according to the

testimony of the VE. See Tr. 76. In short, to the extent that

the ALJ determined that Dr. Fellner’s opinion was not well-

supported for the purposes of the controlling weight analysis,

the court is not persuaded.

With respect to the supportability analysis that applies to

treating source opinions that are not given controlling weight,

the court is not persuaded by the ALJ’s characterization of Dr.

Fellner’s opinion as “conclusory.” Dr. Fellner provided her

29 opinion on a form provided by the SSA, and while that form

consists of three sets of questions calling for answers in check

boxes, each set of questions is followed by a space calling for

a narrative explanation. Dr. Fellner, in turn, used each of

those three spaces to provide a response that identified the

specific diagnoses and/or symptoms that caused the limitations

she ascribed to Hunt. The ALJ’s characterization of Dr.

Fellner’s opinion as “conclusory” appears to be contradicted by

this evidence. More to the point, to the extent that the ALJ

determined that Dr. Fellner’s opinion lacked support, for the

purposes of

(c)(3) & 416.927(c)(3), that

determination does not appear to be well founded.

Finally, there are also problems with the ALJ’s discussion

of consistency with the record as a whole, which is a factor in

both the controlling weight analysis and the analysis that

applies to treating source opinions that are not given

controlling weight. The ALJ said that Dr. Fellner’s opinion “is

inconsistent with the treatment records of the claimant which do

not show marked limitations in social functioning or maintaining

concentration, persistence and pace.” Tr. 36. But, the ALJ

identified no specific treatment records that are inconsistent

with Dr. Fellner’s opinions and, as the court has noted above,

Dr. Fellner’s treatment records are consistent with her

30 opinions. Moreover, Dr. Fellner’s opinion regarding

concentration, persistence and pace are largely consistent with

the opinion offered by Dr. Jackson on this matter. Accordingly,

the court is not persuaded by the ALJ’s handling of the

consistency factor.

3. Hunt’s Remaining Claims of Error

Along with the claims addressed above, Hunt claims that the

ALJ erred in: (1) assessing her RFC; (2) evaluating the

credibility of her statements about the symptoms of narcolepsy

and fibromyalgia; and (3) framing the questions he posed to the

VE. Because the ALJ’s RFC assessment and, by extension, the

questions he posed to the VE, were both based upon an improper

evaluation of the medical opinions, there would be no point in

performing an analysis of those aspects of the ALJ’s decision at

this juncture. With regard to claimant’s challenge to the ALJ’s

credibility assessment, the court presumes that the SSA will

bear in mind the court’s concerns over the ALJ’s reliance upon

Dr. Bolding’s skepticism about fibromyalgia as a diagnosis that

can support a determination of disability. Given that this

matter is being remanded on other grounds, there is no need for

any further consideration of Hunt’s remaining claims.

31 IV. Conclusion

For the reason described above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 11, is

denied, and Hunt’s motion to reverse that decision, document no.

9, is granted to the 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.

__________________________ Landya McCafferty United States District Judge

December 5, 2016

cc: Ruth Dorothea Heintz, Esq. Robert J. Rabuck, Esq.

32