UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lisandro Muniz

v. Civil No. 16-cv-303-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security1

O R D E R

Lisandro Muniz seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the

Social Security Administration, denying his application for

disability insurance benefits under Title II of the Social

Security Act. Because the Administrative Law Judge (“ALJ”)

failed to properly consider opinion evidence and improperly

relied on his own interpretation of the medical record, the

court remands the case to the Social Security Administration.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

1 The complaint names as defendant “U.S., Social Security Administration, Commissioner.” After plaintiff filed her complaint, Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin, and Berryhill is automatically substituted as the defendant. See Fed. R. Civ. P. 25(d). facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin,

(1st Cir. 2016).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

.

The claimant bears the burden through the first four steps of

proving that her impairments preclude her from working.2 Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

step, the Acting Commissioner has the burden of showing that

jobs exist which the claimant can do. Heggarty v. Sullivan,

(1st Cir. 1991).

Background

Muniz filed an application for social security benefits,

alleging disability beginning in July 2010 because of back pain,

hepatitis C, depression, anxiety, insomnia, acid reflux, GERD,

sciatica, and thyroid problems. A hearing was held before ALJ

2 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and hia ability to do past relevant work.

(a).

2 Thomas Merrill in September 2012. In a decision issued later

that month, the ALJ found at Step Two of the sequential analysis

that Muniz did not have a severe impairment and, therefore, was

not disabled.

The Appeals Council directed the ALJ to reconsider evidence

of whether Muniz had a severe impairment at Step Two. In

response, a second hearing was held before ALJ Merrill. The ALJ

again found at Step Two that Muniz did not have a severe

impairment and was not disabled. This time, the Appeals Council

denied review.

The medical records begin in February 2010 when Muniz was

diagnosed with hepatitis, and was also examined and treated for

back pain. In July 2010, Muniz was also treated for depression,

and medical records show that he was taking Methadone at the

time, but taking more than he was prescribed. Muniz continued

to seek treatment for depression throughout 2010.

An MRI done in July 2010 showed disc bulge that was

greatest at L5-S1 with mild to moderate narrowing of the left

neural foramen but without compression of the nerve root. After

the MRI, Muniz began treatment with the Orthopedic Professional

Association clinic, and Dr. Anthony Salerni recommended epidural

steroid injections and physical therapy. In August, Muniz began

treatment at the Interventional Spine Medicine clinic with Dr.

Slezak for low back pain. Dr. Slezak administered steroid

3 injections, but the clinic discontinued Muniz’s treatment in

early 2011.

In March 2011, Muniz sought care for back pain at the

PainCare clinic. Nurse Greg Aprilliano at the PainCare clinic

noted that Muniz reported taking 10 100 milligram tablets of

Methadone each day and also noted that Muniz’s complaints of

pain exceeded the reported pathology in his back. Muniz’s

doctors recommended that he wean from Methadone. The PainCare

clinic stopped prescribing pain medications and subsequently

cancelled Muniz’s treatment because he tried to “double dip” on

his prescription.

In June 2011, a state medical consultant, Dr. MacEachran,

completed a physical residual functional capacity assessment of

Muniz. He found that Muniz was limited to lifting no more than

10 pounds occasionally, standing and walking for no more than

two to three hours in a day, sitting for no more than six hours,

and only occasional postural activities. A psychological

evaluation of Muniz found that he had no severe mental health

impairments.

Beginning in May 2012, Muniz received treatment for ongoing

depression and anxiety at Genesis Behavioral Health. In June

2012, Muniz began primary care treatment with Dr. Kelly

Seichepine, complaining of back pain. Dr. Seichepine noted that

Muniz was having trouble taking medication as prescribed.

4 In September 2012, Dr. Seichepine completed a physical

medical source statement, based on her treatment of Muniz since

June 2011 and the MRI done in 2010. Dr. Seichepine found that

Muniz could lift 10 pounds occasionally, could reach for only 20

percent of the day, could not stay on task for more than 75

percent of the day, could sit for no more than an hour, could

stand for 30 minutes, would need unscheduled breaks, and would

be absent at least four days each month.

Also in September 2012, Helena Greaney, APRN, completed a

psychiatric assessment of Muniz for purposes of benefits under

Financial Assistance for Needy Families. Greaney found that

Muniz was incapacitated by mental health problems.

Muniz continued mental health therapy and also continued

treatment with Dr. Seichepine in 2013. Dr. Seichepine ordered a

new MRI in June 2013. A lumbar MRI was done in July 2013. The

radiologist noted that the MRI showed annual bulging of the disc

extending into the left side with moderate forminal stenosis and

crowding of the L5 nerve root. He also noted degenerative disc

disease at L2-3 with disc extrusion.

In September 2013, Muniz saw Dr. Tanya Vanderlinde at

Concord Hospital for back pain, and saw Dr. Adam Cugalj at the

New Hampshire Institute for back pain in October. Dr. Cugalj

diagnosed bilateral L5 radiculitis with bilateral L5-S1

5 foraminal stenosis. He provided manipulative therapy and a

steroid injection.

Muniz continued treatment with Dr. Seichepine in 2014 and

had increased back pain. A lumbar x-ray showed slight interval

progression of degenerative disc disease. Muniz also continued

treatment for depression in 2014.

Discussion

Muniz contends that the ALJ’s decision must be reversed

because the ALJ failed to consider the opinions provided by Dr.

Seichepine and APRN Greaney, improperly relied on his own

interpretation of the medical evidence in finding no severe

impairment at Step Two, and failed to evaluate properly Muniz’s

impairments. Muniz also contends that substantial evidence

supports a finding that he has severe mental health impairments.

The Acting Commissioner argues that the ALJ’s failure to

discuss the opinions of Dr. Seichepine and APRN Greaney is

harmless, that the ALJ’s failure to adopt Dr. MacEachern’s

opinion is harmless, and that the ALJ made an appropriate common

sense evaluation of Muniz’s limitations. The Acting

Commissioner also argues that the ALJ was not obligated to

discuss all factors for the Step Two finding, and that the ALJ

properly considered the mental health evidence.

6 The Acting Commissioner emphasizes the impact of what she

interprets as Muniz’s drug-seeking behavior on the opinions

provided in the record. For example, the Acting Commissioner

contends that Dr. Seichepine’s opinion is of little value

because Dr. Seichepine was not aware of that behavior when she

wrote her evaluation in June 2012. Similarly, the Acting

Commissioner argues that substantial evidence supports the ALJ’s

Step Two determination because the record supports the

conclusion that Muniz’s drug-seeking behavior played a

significant role in his reported symptoms.

The Acting Commissioner, however, acknowledges that the

ALJ did not discuss Dr. Seichepine’s or APRN Greaney’s opinions

or weigh those opinions based on the issues the Acting

Commissioner now raises. The Acting Commissioner also

acknowledges that the ALJ rejected Dr. MacEachern’s opinion that

Muniz was limited in his functional capacity because of back

pain, noting in conclusory fashion that the record does not

support that opinion. As a result, the ALJ relied on his own

assessment of the record evidence, without any medical opinion.

The Acting Commissioner contends that the ALJ’s analysis was

acceptable in this case. The court disagrees.

An ALJ is “not at liberty to ignore medical evidence or

substitute his own views for uncontroverted medical opinion.”

Nguyen,

. Under the social security regulations

7 the ALJ must evaluate “every medical opinion” that a claimant

submits, “[r]egardless of its source.”

(c).

Accordingly, an ALJ “must explain in the decision the weight given

to . . . any opinions from treating sources, nontreating sources,

and other nonexamining sources . . . .” § 404.1527(e)(2)(ii).

Ordinarily, therefore, an ALJ's failure to consider a medical

opinion in the record is legal error that requires remand. See

Rosado v. Sec’y of Health and Human Servs.,

(1st

Cir. 1986); Pierce v. Colvin, No. CV 15-13596,

, at

*12 (D. Mass. Mar. 24, 2017).

Although there are certain “limited exceptions” to this

rule, such as that “an ALJ need not address specific evidence in

the record that either does not support the claimant’s position

or simply repeats other evidence that the ALJ’s does not

consider,” Grenier v. Colvin, No. 14-cv-153-PB,

,

at *2 (D.N.H. July 2, 2015), those exceptions are not present

here. The opinion evidence ignored by the ALJ supports Muniz’s

position and is not cumulative of other evidence the ALJ

addresses in his decision. Therefore, the ALJ was required to

consider the medical opinions mentioned above, and his failure

to do so requires remand.

In light of the fact that the ALJ has reviewed Muniz’s case

twice, the court believes that this is a case where “a fresh

look by another ALJ upon remand would be beneficial.” Simpson

8 v. Colvin,

(D. Mass. 2014) (internal

quotation marks, citations, and alterations omitted) (directing

the Commissioner to assign a new ALJ to a case in light of the

ALJ having reviewed a case twice). Accordingly, the court

directs the Acting Commissioner to assign a new ALJ to this case

on remand.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

(document no. 9) is granted. The Acting Commissioner’s motion

to affirm (document no. 13) is denied.

The case is remanded for further administrative proceedings

pursuant to sentence four of § 405(g) in accordance with this

order.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

September 15, 2017

cc: Daniel W. McKenna, Esq. T. David Plourde, Esq.

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