UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Daniel Lamy, Claimant

v. Case No. 17-cv-609-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g), claimant, Daniel Lamy,

moves to reverse or vacate the Acting Commissioner’s decision

denying his application for Disability Insurance Benefits under

Title II of the Social Security Act. See

. The

Acting Commissioner objects and moves for an order affirming her

decision. For the reasons discussed below, claimant’s motion is

granted, and the Acting Commissioner’s motion is denied.

Factual Background

I. Procedural History.

In January of 2015, claimant applied for Disability

Insurance Benefits (“DIB”), alleging that he was disabled and

had been unable to work since September 18, 2013. Claimant was

49 years old at the time and had acquired sufficient quarters of coverage to remain insured through September of 2017.

Claimant’s application was denied and he requested a hearing

before an Administrative Law Judge (“ALJ”).

In August of 2016, claimant, his attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s application de novo. About three months later, the

ALJ issued her written decision, concluding that claimant was

not disabled, as that term is defined in the Act, at any time

prior to the date of her decision. Claimant then requested

review by the Appeals Council. That request was denied.

Accordingly, the ALJ’s denial of claimant’s application for

benefits became the final decision of the Acting Commissioner,

subject to judicial review. Subsequently, claimant filed a

timely action in this court, asserting that the ALJ’s decision

is not supported by substantial evidence.

Claimant then filed a “Motion for Order Reversing the

Decision of the Commissioner” (document no. 7). In response,

the Acting Commissioner filed a “Motion for an Order to Affirm

the Commissioner’s Decision” (document no. 9). Those motions

are pending.

2 II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 10), need not be

recounted in this opinion. By way of brief background, the

court notes the following. Claimant worked as a torch brazer

for approximately 25 years at a General Electric facility in

Hooksett, New Hampshire. He testified that he began working

there at age 21, was making “good money,” felt his co-workers

“were like family,” and, but for his disabling back pain, had

planned to retire from there. Admin. Rec. at 56 (“I was there

25 years making good money. But I had to leave the job after

only 25 years [while] I was still young. I was only 47. But I

could have went another 20 years, you know, and making good

money, too. . . . So it was a good job and I was there 25 years

and I had to walk away from it.”).

Claimant has a long history of back pain, dating to a

motorcycle accident in the mid-1980’s. Admin. Rec. at 384. As

that pain became worse, General Electric tried to accommodate

him by providing a stool at his work station, so he could take

some pressure off of his legs. Id. at 56. And, under the FMLA,

claimant was also permitted to take various periods of time off

from work when his pain became too great for him to function

3 effectively. Id. at 57. Eventually, his pain became so severe

that he was unable to return to work, General Electric concluded

that he was totally disabled, and he began collecting benefits

under GE’s long term disability plan.

Over the years, claimant’s pain has become progressively

more severe and disabling. He has tried various ways to address

that pain, including spinal injections and physical therapy,

Admin. Rec. at 31, 54-55, 524; wearing a back brace, id. at 58;

using a jetted tub, id.; using a cane or walking stick when his

“legs are real weak and [his] back is real bad,” id. at 50, 458;

and, as noted by Dr. Ahn, “taking chronic pain medication for a

long time,” id. at 524. Unfortunately, however, his long-term

use of those medications (which included 30mg of morphine twice

daily) caused stomach and liver problems and he had to

discontinue their use. See Id. 58-59, 327, 419, 444, 524.

In 2013, claimant moved his bed from the second floor to

the first, so he could avoid using the stairs. Admin. Rec. at

247, 253, 277. At the hearing, claimant described an event that

happened about a month earlier when he was awakened in the

middle of the night screaming in pain, to the point that he

frightened his girlfriend and her dogs (and prompted her to

insist that he go to the emergency room for treatment -

4 something he says he had never done before in his life). Id. at

66, 453-59. In July of 2016, following his trip to the

emergency room, claimant obtained a surgical consult with Dr.

Uri Ahn, at the New Hampshire NeuroSpine Institute. Dr. Ahn

diagnosed claimant with “significant degeneration lateral

osteophytes loss of disc space height at L3-4. . . .

Degenerative disc disease L3-4 [and] spinal stenosis of lumbar

region.” Admin. Rec. at 525-26. Although Dr. Ahn discussed

surgery to address claimant’s chronic pain, he discouraged

claimant from pursuing that option because the success rate

associated with such a procedure is only 66 percent, because

infection and nerve damage were a possibility, because claimant

was not suffering from constant severe pain, and because he was

concerned about claimant’s cigarette smoking. Id. Dr. Ahn

explained that the type of surgery they were talking about was

typically recommended only “for people for suffering on a daily

basis.” Because claimant’s debilitating pain was episodic,

surgery was not recommended, “no matter how severe” his pain.

Id. at 525-26.

Nothing in the record suggests that claimant exaggerates

his symptoms or is anything but an accurate historian when

describing his treatment regimen, medications and their efficacy

and side effects, daily activities, and levels of pain. He has,

5 for example, been consistently forthright with his treating

physicians about his efforts to obtain some relief through the

use of “alternative” pain medications - something that obviously

causes him more than a little embarrassment. See, e.g., Admin.

Rec. at 59-60. See also Id. at 303, 454-55, 525. Finally, the

evidence is undisputed that he is not a malingerer - indeed,

when asked about that topic, one of his treating physicians, Dr.

Thomas Synan (who has known claimant for more than twenty

years), responded that claimant is “absolutely not” a

malingerer. Id. at 452. See also Id. at 390 and 528.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

6 Edison Co. v. NLRB,

(1938). Importantly, it

is something less than a preponderance of the evidence, so the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking DIB benefits is disabled under the

Act if he or she is unable “to engage in any substantial gainful

activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous

period of not less than 12 months.”

(d)(1)(A).

The Act places a heavy initial burden on the claimant to

establish the existence of a disabling impairment. See Bowen v.

Yuckert,

(1987); Santiago v. Secretary of

Health & Human Services,

(1st Cir. 1991). To

satisfy that burden, the claimant must prove, by a preponderance

of the evidence, that his impairment prevents him from

performing his former type of work. See Manso-Pizarro v.

Secretary of Health & Human Services,

(1st Cir.

1996); Gray v. Heckler,

(1st Cir. 1985).

7 Here, there is no question that claimant has satisfied his

burden. Accordingly, the burden shifts to the Commissioner to

show that there are other jobs in the national economy that he

can perform, in light of his age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

and 404.1560.

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or

8 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that claimant had not

been engaged in substantial gainful employment since his alleged

onset of disability: September 18, 2013. Admin. Rec. at 28.

Next, she concluded that claimant suffers from the following

severe impairments: “degenerative disc disease of the lumbar and

thoracic spine, degenerative joint disease/osteoarthritis of the

knee.”

. But, the ALJ determined that claimant’s

impairments, whether considered alone or in combination, did not

meet or medically equal one of the impairments listed in Part

404, Subpart P, Appendix 1. Admin. Rec. at 29.

9 Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

“light” work, subject to the following limitations: “he can

stand and walk for 4 hours of an 8-hour day, and requires the

opportunity to change position from sitting to standing or

walking and from standing or walking to sitting, at least once

per hour for 3 to 5 minutes at a time. Further, he can never

climb ladders and or scaffolds, can occasionally twist at the

waist, stoop and crouch and may need to use a cane to ambulate.”

. In light of those restrictions, the ALJ concluded

that claimant was not capable of performing his past relevant

work as a torch brazer.

. See also

(vocational expert’s testimony about claimant’s prior work ).

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform. Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding

claimant’s exertional and non-exertional limitations, “there are

jobs that exist in significant numbers in the national economy

that the claimant can perform.”

. Consequently, the

ALJ concluded that claimant was not “disabled,” as that term is

defined in the Act, through the date of her decision.

10 Discussion

Claimant challenges the ALJ’s decision on three grounds,

asserting that she erred by: (1) erroneously giving greater

weight to the opinion of a non-examining state agency physician

than to the opinions of claimant’s treating physicians; (2)

improperly evaluating claimant’s testimony in light of the

recently-adopted Social Security Ruling concerning claimants’

credibility; and (3) failing to resolve a potential conflict

between the vocational expert’s testimony and the Dictionary of

Occupational Titles (concerning claimant’s possible need to rely

upon a cane to ambulate). Because the court agrees that the ALJ

failed to give sufficient reasons for affording only limited

weight to the opinions of claimant’s treating sources, it need

only address that issue.

In discussing the weight that will be ascribed to the

opinions of “treating sources,” the pertinent regulations

provide:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) . . . When we do not give the treating source’s opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of

11 determination or decision for the weight we give [the claimant’s] treating source’s opinion.

(c)(2). See also Social Security Ruling,

Policy Interpretation Ruling Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions, SSR 96-

2p,

(July 2, 1996) (when the ALJ renders an

adverse disability decision, his or her notice of 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 the

weight.”). Importantly, however, there is no per se rule

requiring the ALJ to give greater weight to the opinion of a

treating source. To be entitled to controlling weight, a

treating source’s opinions must be “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and

[cannot be] inconsistent with the other substantial evidence in

[the] case record.” 20 C.F.R. ' 404.1527(c)(2). 1

1 The court notes that the rules addressing the weight to be afforded to treating sources were changed effective March 27, 2017. See

.1520c. But, because the claim at issue was filed prior to that date, those new regulations do not apply to this case.

12 Here, the record contains three treating source statements:

one from Dr. Powen Hsu (a long-time treating source), Admin.

Rec. at 389-93; one from claimant’s newest primary care

physician, Dr. Alan Stein, id. at 527-31; and one from another

long-time primary care physician, Dr. Thomas Synan, who has

known claimant for more than twenty years, id. at 448-52. They

are remarkable in their consistency. At least two treating

sources agree (while one did not opine) on the following facts:

claimant can walk only a single city block before needing to

rest due to severe pain; during an 8-hour workday, claimant

would need to walk around at least every hour for about five

minutes; and, because claimant’s severe pain waxes and wanes,

his impairments are likely to produce “good days and bad days.”

All three treating physicians unite in opining that:

claimant suffers from chronic severe back pain; he is not a

malingerer; emotional factors do not contribute to claimant’s

pain; his impairments are consistent with his symptoms and

physical limitations; claimant is able to sit for between 15

minutes (two opinions) and hour (one opinion) before needing to

get up; he can stand for somewhere between 5 minutes to less

than one hour before needing to sit down; claimant would need

unscheduled periods of walking around during an 8-hour workday;

he would require a job that permits him to alternate at will

13 between sitting, standing, or walking; and, finally, claimant

would be absent from work “more than four days per month” due to

his impairment - the very issue that prompted his prior employer

to grant him periodic FMLA leave, before ultimately concluding

that he is totally disabled.

The explanations the ALJ offered for discounting the

opinions of claimant’s three treating source are, on balance,

insufficient. For example, she noted that Dr. Uri Ahn observed

“no evidence of significant foraminal or central canal

stenosis.” Admin. Rec. at 31. What the ALJ did not mention was

Dr. Ahn’s conclusion that claimant does suffer from “spinal

stenosis of the lumbar region,” with “disc degeneration” and

“significant degeneration lateral osteophytes loss of disc space

height at L3-4.” Id. at 525-26. See also Id. at 338 (January,

2015, assessment of Dr. Hsu: “Lumbar disc degeneration.

Herniated thoracic disc.”). The ALJ also noted that Dr. Ahn

reported that claimant had been off prescribed pain medications

for the past eight months. But, as claimant testified at the

hearing (and as his various treating sources have acknowledged),

he was forced to stop taking opiates because they were causing

stomach problems and liver damage. Id. at 58-59. He did,

however, continue to take “800s to try to take the edge off.”

14 Id. at 58 (referring to his use of prescription strength

Ibuprofen).

The ALJ describes claimant’s decision to stop taking

prescription pain medications as a “choice” that implies his

pain is not as significant as he claims. Admin. Rec. at 31.

But, given the significant side effects those medications were

causing, that is not a reasonable inference to draw.

The ALJ also concluded that claimant’s reported activities

of daily living were inconsistent with an inability to perform

light work. Id. at 31. She seems to have focused on claimant’s

ability to assist his girlfriend in doing modest household

chores during his “good” days and his continued ability to hunt

deer. But, as claimant explained in his testimony, his hunting

excursions have changed dramatically as a result of his back

pain. While he once hunted deer in the woods from tree stands,

he was now restricted to using a blind that he constructed on

the ground in his backyard.

I used to be able to walk a lot, hunt the power line, go down four or five telephone poles down. Walk in the woods. Sit, drag out a deer, whatever, back in the day.

And now it’s gotten to the point I hunt in my own backyard and 100, 150 yards behind my own house and I have to stop halfway out to my blind to take a break

15 with my legs from walking. And the thing is I grew up since I was six years old hunting and fishing. My mom hunts, my dad. We’re a hunting family and all that. They still hunt in their 70’s and they live down the road from us like I said and my fiancée outside hunts. I just can’t do what I used to do. That’s the bottom line and if they cut my legs off at the knees, I would try to drag myself out there to hunt because number one, I love it. I’ve always done it. That’s -- means a lot to me. And number two, I got high cholesterol and Dr. Stein had told me before eat all the venison you can because it’s so lean, it’s good for you. So if we get a deer, that’s our meat for the winter. So the thing is I can’t do what I used to do, but like I said, if they cut my legs off, I’d still try to drag myself out there to hunt.

Id. at 61. See also Id. at 63 (“Yeah, because back in the day,

I used to use tree stands. I’d climb up in a tree stand. Now I

have a ground blind. I got a little zipper door. You walk in

and [there’s] a little chair. You sit down and [there’s] a

little open window . . ..”). Because of his disability,

claimant was unable to continue hunting with a bow and arrow.

Instead, he obtained a special permit from the State of New

Hampshire (apparently available only to those with disabilities)

that allowed him to use a crossbow, so he would not strain his

back tensioning the bow string (he uses a special tool that he

can crank to tension the bowstring). Id. at 62. 2

2 Dr. William Backlund, a non-examining state agency physician, who opined that claimant was capable of light work (an opinion to which the ALJ gave “great weight”) also seemed to rely heavily on claimant’s ability to hunt in reaching the conclusion that the record evidence does not support the assertion that claimant is “significantly limited in

16 The ALJ also discounted the opinions of Dr. Hsu because,

among other things, it was unclear to her “who prepared the

forms, as the handwriting appears distinct between them.” Id.

at 32. That, plainly, is not a reason to discount those

opinions. Dr. Hsu signed the form (thereby fully adopting its

content). Even if another staff person assisted him in

preparing portions of it, his endorsement makes the conclusions

his own. The ALJ similarly discounted the opinions of Dr. Synan

(the physician who has known claimant for more than 20 years)

because his opinion that claimant would be absent for more than

four days each month was “unexplained” and contrary to “clinical

findings discussed in this decision.” Id. at 32. But, it

probably bears noting that the form completed by Dr. Synan (and

Dr. Stein and Dr. Hsu) does not ask for an explanation; it

simply asks for an opinion: “Please estimate, on average, how

many days per month your patient is likely to be absent from

work as a result of the impairments or treatment.” Id. at 452.

See also Id. at 393, 531.

ambulation.” See Admin. Rec. at 94. In addition to being cursory to the point of lacking any meaningful discussion of the medical record (a point for which the ALJ faults various treating source opinions), Dr. Backlund’s opinion seems to ignore claimant’s need to switch to a backyard blind and to a crossbow. It is also, without adequate explanation, entirely inconsistent with the opinions of claimant’s three treating sources.

17 The point does not require repetition. While review of an

ALJ’s disability decision is highly deferential, and while that

decision need only be supported by “substantial evidence,” the

court is constrained to conclude that the ALJ’s decision to

substantially discount the opinions of claimant’s three treating

sources is inadequately explained, and not adequately supported

by her stated reasons.

Conclusion

There is, to be sure, some evidence in the record -

primarily opinions from non-treating sources that are not

terribly well-supported - to support the ALJ’s decision. And,

while the court recognizes that the governing standard of review

is quite deferential, it is not without meaning altogether. The

court is compelled to conclude that the evidence and the

opinions upon which the ALJ relied, and her reasons for doing

so, are insufficient to constitute “substantial evidence” -

particularly when balanced against the significant evidence

(which includes claimant’s long work history at General Electric

and three reliable treating source opinions) strongly suggestive

of claimant’s disability.

For the foregoing reasons, as well as those set forth in

claimant’s memorandum, claimant’s motion to reverse the decision

18 of the Commissioner (document no. 7) is granted to the extent he

seeks an order vacating the ALJ’s decision and a remand for

further proceedings consistent with this order. The Acting

Commissioner’s motion to affirm her decision (document no. 9) is

denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated November 2, 2016, is vacated and this

matter is hereby remanded for further proceedings consistent

with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

June 22, 2018

cc: D. Lance Tillinghast, Esq. Terry L. Ollila, AUSA

19