UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jodie Marie Nickerson, Claimant

v. Case No. 15-cv-487-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Jodie Nickerson, moves to reverse the Acting Commissioner’s

decision denying her applications for Disability Insurance

Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under Title

XVI,

, 1381-1383c (the “Act”). 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 November of 2012, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that she was disabled and had been

unable to work since November of 2009. Claimant was 34 years

old at the time of her alleged onset of disability. Her

applications were denied, and claimant requested a hearing

before an Administrative Law Judge (“ALJ”).

In May of 2014, claimant, her attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. On July 7, 2014, the ALJ

issued his written decision, concluding that claimant was not

disabled, as that term is defined in the Act, at any time prior

to the date of his decision. Claimant then sought review by the

Appeals Council, which denied her request for review.

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

benefits became the final decision of the 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.

2 Claimant then filed a “Motion to Reverse” the decision of

the Acting Commissioner (document no. 8). In response, the

Acting Commissioner filed a “Motion for an Order Affirming the

Decision of the Commissioner” (document no. 11). Those motions

are pending.

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. 12), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

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

3 evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

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 SSI and/or DIB benefits is disabled

under the Act if 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). See also 42 U.S.C. § 1382c(a)(3). The Act

places the 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 her impairment prevents her from performing her

4 former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform her previous work, the burden shifts to the Commissioner

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

she can perform, in light of her age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

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 claimant’s testimony and/or that

of 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 her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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

5 exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

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 Nickerson was not disabled within the

meaning of the Act, the ALJ employed the mandatory five-step

sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that Nickerson had not

been engaged in substantial gainful employment since her alleged

onset of disability: November 6, 2009. Admin. Rec. at 18.

Next, he concluded that she suffers from the following severe

impairments: “status post-left knee arthroscopy, right ankle

laxity, somatoform disorder, anxiety disorder and affective

disorder.”

. The ALJ considered claimant’s additional

6 impairments: high blood pressure and headaches,

, but

determined that these impairments were nonsevere.1

The ALJ then determined that Nickerson’s impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1.

. In conjunction with this determination, the ALJ evaluated

Nickerson’s depression, and somatoform and anxiety disorders

under Section 12.06, but found that they did not meet the

criteria of Section B of that Listing.

Next, the ALJ concluded that Nickerson retained the

residual functional capacity (“RFC”) to perform the exertional

demands of light work, as defined in 20 CFR 404.1567(b) and

416.967(b): “she can lift and/or carry 20 pounds occasionally

and 10 pounds frequently; stand and walk for 6 hours in the

workday; sit for 8 hours in the work days; push and pull

occasionally with her lower extremities; frequently balance;

1 The ALJ also ascribed impairments of bilateral hip pain and chronic low back pain to Nickerson, but, in doing so, was improperly referencing records that belonged not to Nickerson, but instead to another patient entirely. Records relating to that patient were erroneously included in the exhibits reviewed by the ALJ. They were subsequently removed from the administrative record by the Appeals Counsel at some point prior to this appeal, and this court has not had an opportunity to review them or assess the impact they may have had on the ALJ.

7 occasionally climb stairs, stoop and crouch; should never climb

ladders, kneel or crawl; should avoid unprotected heights; and

is limited to unskilled and semi-skilled work, for which she is

able to concentrate, persist and pace for the typical two hour

segments of time during a normal work day and work week.”

Admin. Rec. at 23-24.

In light of those restrictions, and relying on the

testimony of the vocational expert, the ALJ concluded that

Nickerson was capable of performing her past relevant work as a

day program worker.

. The ALJ then made an

alternative finding, and, under step five, considered whether

there were any jobs in the national economy that claimant might

perform. Based on claimant’s educational and vocational

background, and her RFC, the ALJ determined that claimant could

perform the jobs of fast food worker, sales attendant and

sorter.

. Accordingly, the ALJ concluded that

claimant was not “disabled,” as that term is defined in the Act,

through the date of his decision.

Discussion

Nickerson challenges the ALJ’s decision, arguing that the

ALJ erred by mishandling the medical opinion evidence, and

8 improperly evaluating her credibility. She further takes issue

with the ALJ’s step five determination. Nickerson’s argument

regarding the medical opinion evidence is persuasive, and

dispositive. Accordingly, the court need not address her

remaining arguments.

“An ALJ must take into account the medical opinions in a

claimant's case record when making a disability determination.”

Wenzel v. Astrue, No. 11-CV-269-PB,

, at *4

(D.N.H. July 6, 2012) (citing

(b)). As this

court has previously stated:

[d]uring the process of review, when the Commissioner determines that “any of the evidence in [a] case record, including any medical opinion(s), is inconsistent with other evidence or is internally inconsistent, [she] will weigh all of the evidence and see whether [she] can decide whether [claimant is] disabled based on the evidence [she has].” [20 C.F.R.] § 404.1527(c)(2). When it is necessary to weigh medical evidence, every medical opinion will be evaluated, regardless of its source. [20 C.F.R.] § 404.1527(d). According to the established hierarchy of medical sources, opinions from treating sources are given the greatest weight, followed, in order, by opinions from nontreating sources and opinions from nonexamining sources. [20 C.F.R.] §§ 404.1527(d)(1) and (2).

Evans v. Barnhart, No. CIV. 02-459-M,

, at

*5 (D.N.H. Dec. 4, 2003).

9 In the ALJ’s evaluation of Nickerson’s depression,

somatoform disorder and anxiety disorders under Section 12.06,

Section B, he considered the medical opinions of three

practitioners. The ALJ assigned the most weight to the opinion

of non-examining state agency psychologist, Dr. Jan Jacobsen.

Admin. Rec. at 22. Dr. Jacobsen reviewed Nickerson’s medical

records on February 15, 2013, and concluded that she had only

moderate limitations in maintaining concentration, persistence

and pace. Dr. Jacobsen further opined that Nickerson retained

the ability to understand and remember simple to moderately

detailed tasks, and to sustain attention to perform tasks for

extended two-hour periods throughout the day. Admin. Tr. at 94.

The second opinion was that of Dr. William Swinburne, a

consultative psychologist for the Social Security

Administration. Dr. Swinburne saw Nickerson for a psychological

profile on January 3, 2013. Admin. Rec. 369-374. He diagnosed

her with a major depressive disorder (recurrent, moderate), a

pain disorder with both psychological factors and general

medical condition, and a panic disorder without agoraphobia; he

gave Nickerson a Global Assessment of Functioning (“GAF”) score

of 50.2 Id. at 372-73. Dr. Swinburne opined that Nickerson

2 The “Global Assessment Functioning” scale is “used to report a clinician's judgment of an individual's overall level of psychological, social, and occupational functioning at the

10 “could be expected to understand and remember short and simple

instructions and to be able to take supervision,” and that she

“can be expected to get along with coworkers in a socially

appropriate manner.” Id. at 372. However, he opined, Nickerson

“does not tolerate stress very well,” and, “[i]n a work-like

situation . . . can be expected to have difficulty providing

reasonably good attendance.” Id. at 372. He stated that

Nickerson was “easily distracted,” needing “to be refocused

frequently to the question asked,” and opined that she would

“need close supervision to stay focused on a task and to be

moved from one task to another.” Id.

Finally, the ALJ considered the opinion of Dr. William

Dinan, with whom Nickerson met on February 4, 2013, in

connection with her application for Aid to the Permanently and

time of evaluation.” King v. Colvin,

(D. Mass. 2015) (citing Gagnon v. Astrue, No. 1:11–CV– 10481–PBS,

, at *5 (D. Mass. Mar. 27, 2012)). “[GAF] scores may be of help in assessing functional ability, although they are not determinative.”

(internal quotation omitted).

“GAF scores range from 0–100. A GAF score of 41–50 indicates ‘[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).’” Wyman v. Astrue, No. 11- CV-574-PB,

, at *1 n.2 (D.N.H. Feb. 7, 2013)(quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (rev. 4th ed. 2000)).

11 Totally Disabled (“APTD”), a state disability program.

Regarding Nickerson’s concentration, Dr. Dinan described

Nickerson as: “erratic, easily distracted, forgetful, pace

slow.” Admin. Rec. at 256. He diagnosed Nickerson with major

depression (mild) and anxiety, and assigned her a GAF score of

65.3 Relying on Dr. Dinan’s report, Dr. Peter Delfausse

completed an assessment for ATDP in May, 2013, and opined that

Nickerson had marked limitations in concentration and

persistence. Admin. Rec. at 251-52.

The ALJ found that Dr. Swinburne’s opinions concerning

Nickerson’s limitations in maintaining concentration and

persistence were not supported by the record. In support of

that conclusion, the ALJ stated that Dr. Swinburne “could only

[so] conclude based” on Nickerson’s self-reporting. Admin. Rec.

at 23. He further relied upon the fact that Dr. Douglas Moran,

Nickerson’s orthopedic specialist, did not mention Nickerson’s

mental health limitations in his treatment notes; and that

Nickerson had “reported a four-month gap [in treatment] to Dr.

3 A GAF score between 61 and 70 suggests “that one has some mild symptoms or some difficulty in social, occupational or school functioning, but generally functions pretty well and has some meaningful relationships.” Stanley v. Colvin, No. CIV.A.11-10027-DJC,

, at *5 (D. Mass. Mar. 28, 2014) (citing Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (rev. 4th ed. 2000)).

12 Moran as being busy and moving.”

The ALJ also relied upon

Nickerson’s self-report around that time period that “counseling

was going well and helping her.” Admin. Rec. at 23.

Regarding Dr. Dinan’s and Dr. Delfausse’s opinions, the ALJ

noted that Dr. Dinan had assessed a GAF of 65, “indicative of

mild symptomology and no severe impairment” (admin. rec. at 23),

which, he stated, was inconsistent with a finding of marked

impairment. On this basis, he declined to weight their opinions

concerning Nickerson’s marked limitations in concentration and

persistence.

Nickerson takes issue with the ALJ’s treatment of Dr.

Swinburne’s opinions. First, Nickerson contends that the ALJ

erred in stating that Dr. Swinburne’s conclusions were based

entirely on Nickerson’s subjective reports. Review of the

record makes clear that Nickerson is correct: Dr. Swinburne

examined Nickerson, and his opinions are substantially based on

his own observations. The Commissioner does not meaningfully

dispute the point. See Mem. in Support of Mot. to Affirm at 4

(“the ALJ was not entirely accurate when he stated that Dr.

Swinburne ‘could only conclude [that Plaintiff was as limited as

he found] based on [Plaintiff’s] self report,’ because Dr.

13 Swinburne examined Plaintiff and based his opinion on some of

his observations.”).

Second, Nickerson argues, the ALJ erroneously relied upon a

purported “four month gap” in treatment when she was “busy and

moving” in support of his determination. The ALJ’s “four month

gap” observation was derived from evidence that pertains not to

Nickerson, but rather to a different patient; as discussed

above, that evidence was later removed from the administrative

record. So, it cannot reasonably be disputed that the ALJ’s

reliance upon that record evidence was in error, and, it is

difficult to calculate what effect it had on the ALJ’s decision.

Nickerson further finds flaw with the ALJ’s reliance upon

Dr. Moran’s treatment notes in support of his determination that

Dr. Swinburne’s opinions were not supported by the record. She

argues that Dr. Moran is an orthopedist who was focused on

repairing her knee; it therefore makes little sense for the ALJ

to rely on a lack of comment by Dr. Moran on her mental

functioning. That argument has some appeal, especially since

the ALJ cites to no evidence in the record suggesting that Dr.

Moran had either the opportunity to (or an interest in) evaluate

Nickerson’s mental functioning, or that Nickerson ever raised

her mental health limitations and concerns with Dr. Moran.

14 Finally, Nickerson argues, the ALJ was wrong: Dr.

Swinburne’s opinion is, in fact, supported by the record. She

points to Dr. Delfausse’s assessment, which found that Nickerson

had marked limitations in concentration and persistence.4 As the

Commissioner concedes, Dr. Delfausse’s opinion arguably does

support Dr. Swinburne’s assessment. But, as the Commissioner

correctly points out, the ALJ is entitled to weigh the evidence

and resolve conflicts between medical opinions. See Irlanda

Ortiz,

(“the resolution of conflicts in the

evidence is for the Secretary, not the courts.”). That said,

the reasons given by the ALJ for assigning little weight to Dr.

Swinburne’s opinions are mostly invalid or not supported by the

record.

Nevertheless, the ALJ’s decision can “still pass muster if

the other reasons given to accord medical reports little weight

are adequately supported.” Arroyo v. Barnhart,

(D. Mass. 2003). The Commissioner argues that should

be the case here, because, in addition to the above, the ALJ

4 Nickerson objects to the fact that the ALJ discussed Dr. Dinan’s GAF score of 65, but did not discuss Dr. Swinburne’s GAF score of 50. However, the record makes clear that the ALJ was not considering Dr. Dinan’s GAF score for purposes of determining whether Nickerson was severely disabled. Instead, he was considering of the GAF score in the context of evaluating the consistency of Dr. Delfausse’s and Dr. Dinan’s medical opinions.

15 also considered Nickerson’s statement that counseling was going

well, and helping her.

Assuming that statement alone is sufficient to constitute

substantial evidence that would justify discounting the weight

assigned to Dr. Swinburne’s opinion, the ALJ did not

sufficiently explain why that statement would undermine Dr.

Swinburne’s opinions concerning Nickerson’s limitations with

respect to concentration and persistence. Further complicating

matters is that the record evidence the ALJ erroneously cites in

support is a medical record from a primary care visit for ear

pain. See Admin Rec. at 23 (citing “Exhibit 8F/13” or Admin.

Rec. at 399). That document contains no discussion of

Nickerson’s mental health or counseling. And, as Nickerson

points out, some of those medical records that do reflect her

reports that counseling was going well are internally

inconsistent. See, e.g., Admin. Rec. at 394 (medical record

from Nickerson’s primary care provider, noting Nickerson’s

report that counseling is “going well,” but counselor

recommended Nickerson see a psychiatrist “as she does not think

the Celexa is doing anything for her . . . Taking Klonopin three

times a day. Doesn’t think this is enough, at times takes a

fourth.”). Accordingly, and “[i]n the absence of a more

developed analysis on the part of the ALJ, the court cannot

16 accept for purposes here the alternative justification offered

for assigning little weight” to Dr. Swinburne’s opinion.

Arroyo,

.

In light of the above, the court must conclude the ALJ’s

decision to afford Dr. Swinburne’s opinion little probative

weight is not supported by substantial evidence. See Haggblad

v. Astrue, No. 11-CV-028-JL,

, at *13 (D.N.H.

Nov. 17, 2011), report and recommendation adopted sub nom.

Haggblad v. U.S. Soc. Sec. Admin., Com'r, No. 11-CV-28-JL,

(D.N.H. Dec. 6, 2011) (“None of the reasons the ALJ

gave for according little weight to Dr. Deberghes' opinions is

supportable. Because the ALJ failed to provide a supportable

reason for discounting Dr. Deberghes' opinions, the RFC that

resulted from his decision to give more weight to Dr. Fairley's

opinions than Dr. Deberghes' opinions is not supported by

substantial evidence.”) “Because, in turn, the weight

determination is crucial to establishing whether or not

Plaintiff is disabled, a remand is proper on this ground alone.”

Arroyo,

(collecting cases). The court

having determined that Nickerson is entitled to a remand, she is

free to raise her additional arguments to the ALJ for

reconsideration on remand.

17 Conclusion

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

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

the decision of the Commissioner (document no. 8) is granted,

and the Acting Commissioner’s motion to affirm her decision

(document no. 11) is denied. The Clerk of the Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge January 6, 2017

cc: Raymond J. Kelly, Esq. Michael T. McCormack, AUSA

18