UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Corinna Leigh Harvey, Claimant

v. Case No. 17-cv-28-SM Opinion No.

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

O R D E R

Pursuant to

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

Corinna Harvey, moves to reverse or vacate the Acting

Commissioner’s decision denying her application for

Supplemental Security Income Benefits under Title XVI of the

Social Security Act. See

-1383c (collectively,

the “Act”). The Acting Commissioner objects and moves for an

order affirming her decision.

For the reasons discussed below, claimant’s motion is

granted to the extent she seeks a remand for further

proceedings, and the Acting Commissioner’s motion is denied. Factual Background

I. Procedural History.

In October of 2013, claimant filed an application for

Supplemental Security Income (“SSI”) benefits, alleging that she

was disabled and had been unable to work since October 18, 2013.

Claimant was 39 years old at the time. That application was

denied and claimant requested a hearing before an Administrative

Law Judge (“ALJ”).

In September of 2015, claimant, her representative, and an

impartial vocational expert appeared before an ALJ, who

considered claimant’s application de novo. Five weeks later,

the ALJ issued her written decision, concluding that claimant

was not disabled, as that term is defined in the Act. Claimant

then sought 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. 8). In response,

2 the Acting Commissioner filed a “Motion for an Order Affirming

the Decision of the Commissioner” (document no. 9). 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. 10), 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

evidence is “such relevant evidence as a reasonable mind might

3 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 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.” 42 U.S.C. § 1382c(a)(3)(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 her impairment prevents her from

performing her former type of work. See Manso-Pizarro v. Sec'y

4 of Health & Human Servs.,

(1st Cir. 1996); Gray

v. Heckler,

(1st Cir. 1985). 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

(g).

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

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 exists in the immediate area in which [she] lives, or

5 whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

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 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 the date on

which she applied for benefits: October 30, 2013. Admin. Rec.

at 17. Next, she concluded that claimant suffers from the

following severe impairments: “obesity, asthma, shoulder

disorder, major depressive disorder, anxiety disorder, and

bipolar disorder.”

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 18.

6 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: “claimant is

limited to no climbing of ladders, ropes, or scaffolds; and

occasional crawling. In addition, the claimant is limited to

routine day-to-day work; with no direct interaction with the

general public; she is capable of incidental superficial

interaction with the general public.” Admin. Rec. at 20. In

light of those restrictions, the ALJ concluded that claimant was

not capable of performing any past relevant work.

.

See also

(vocational expert’s testimony about

claimant’s work history).

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, from October 30, 2013, through the date of

her decision (November 24, 2015).

7 Discussion

Claimant challenges the ALJ’s decision on two grounds,

asserting that she erred: (1) by improperly using her lay

knowledge (rather than securing medical experts) to determine

claimant’s residual functional capacity; and, somewhat

relatedly, (2) by failing to give appropriate weight to the

opinions of claimant’s treating sources. Because the court

agrees that the ALJ’s assessment of the limitations imposed upon

claimant by reason of her mental impairment lacks adequate

support in the expert medical opinions of record, it will focus

exclusively on that issue.

Claimant suffers from bipolar disorder type II - a type of

manic-depressive illness defined by a pattern of depressive

episodes and hypomanic episodes, but not the full-blown manic

episodes characteristic of bipolar disorder type I. That type

of mental illness presents particular difficulty in the

disability context because one of its hallmark characteristics

is the fluctuating, episodic nature of symptoms. As this court

has observed:

One feature - perhaps the hallmark - of bipolar disorder is that it is “episodic.” The very nature of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so that any single notation by a provider that a patient is

8 feeling better or has had a “good day” does not imply that the condition has been treated. Accordingly, where the claimant has a severe impairment of bipolar disorder, the ALJ must not simply “cherry-pick” the files of treating physicians to find evidence of good results among evidence of symptoms. Likewise, a treating source opinion that a claimant with bipolar disorder is “stable” must be viewed in context. An observation, for instance, that claimant is “stable in the office” is not the same as an observation of “stability” as to [claimant’s] ongoing bipolar disorder.

Walsh v. Astrue,

,

, at *4 (D.N.H.

Mar. 20, 2012) (citations, footnote, and internal punctuation

omitted).

Here, claimant has “a very complicated history, as well as

[a] complicated medication regimen.” Admin. Rec. at 539,

“Psychiatric History” completed by Bienvendido Manzanero, M.D.,

Hampstead Hospital. She has received outpatient psychiatric

counseling for years, most recently from the Genesis Group, in

Plymouth, New Hampshire. She has also been hospitalized (both

voluntarily and involuntarily) as an inpatient psychiatric

patient on eleven occasions. See, e.g., Id. at 537. She has

also presented numerous times to various hospital emergency

rooms, most often, it seems, with suicidal ideation or, at a

minimum, thoughts of harming herself. See, e.g., Id. at 595,

637, 653.

9 To understand the difficult position in which the ALJ found

herself in considering claimant’s application, one must first

understand the timing of certain events. On February 25, 2014,

claimant met with Rexford Burnette, Ph.D., who completed a

mental health evaluation report. Admin. Rec. at 532-36.

Unfortunately, however, Dr. Burnette was provided with very few

of claimant’s medical records. See Id. at 532 (noting, on

several occasions, the lack of medical records related to

claimant’s various mental health treatments). Consequently, Dr.

Burnette based his opinions largely on his 60-minute interaction

with claimant (who, it seems, was having a “good day”), as well

as claimant’s “vague” oral recitation of her treatment history.

Indeed, Dr. Burnette recognized that although his opinions about

claimant’s symptoms “appear to be valid, there remain many

unanswered concerns about this claimant’s symptom presentation

and diagnosis which could not adequately be resolved in the

course of a one-hour clinical interview. Perhaps a careful

review of her therapist’s notes (Amy Sullivan) may clarify some

of these issues.” Id. at 534.

Two weeks later, on March 6, 2014, state agency examiner

Michael Schneider, Psy.D., completed a review of claimant’s

medical history and, affording Dr. Burnette’s report “great

10 weight,” he concluded that claimant suffers from no severe

mental impairment(s), and experiences only “mild” impairments in

her activities of daily living, social functioning, and

concentration. Admin. Rec. at 97-98. See generally

(“An impairment or combination of impairments is not

severe if it does not significantly limit [the claimant’s]

physical or mental ability to do basic work activities.”).

Meanwhile, on March 4, 2014 (and obviously unknown to Dr.

Schneider), claimant had been admitted for psychiatric

hospitalization in Concord, New Hampshire. She remained

hospitalized for nearly a week, until March 10. Admin. Rec. at

579. And, just three days after her discharge, on March 13,

2014, claimant was taken to the emergency room at Spear Memorial

Hospital in Plymouth by her mother, after claimant expressed a

plan to cut her wrists. She was transferred to Franklin

Hospital and involuntarily admitted for depression and suicidal

ideation. Id. at 1218. Again, she remained hospitalized for

nearly a week (until March 19).

Approximately seven months later, on October 6, 2014,

claimant again presented to Spear Memorial Hospital, with

depression and suicidal ideation. This time, she was

11 transferred to Hampstead Hospital, where she was admitted for

“mood swings, depression and thoughts of cutting her wrists with

a knife.” Admin. Rec. at 537. Once again, she remained

hospitalized for about one week (until October 13).

Subsequently, the claimant presented to the emergency room

at Spear Memorial Hospital twice, and the emergency room at

Concord Hospital once with depression and thoughts of harming

herself. Admin. Rec. at 595 (October 20, 1994); 637 (April 17,

2015); and 653 (July 15, 2015). Parenthetically, the court

notes that while the Commissioner attributes claimant’s various

lapses into deep depression and/or suicidal ideation to a lack

of compliance with her prescribed medications, the treatment

notes from those three emergency room visits do not suggest that

she had been non-compliant.

In short, then, after claimant’s 60-minute consultative

exam with Dr. Burnette, and after Dr. Schneider completed his

review of claimant’s medical records, claimant was hospitalized

at inpatient psychiatric care facilities three times (each for

approximately one week), and she presented to various hospital

emergency rooms another three times, for depression and suicidal

ideation. Given all of that evidence, the ALJ properly declined

12 to adopt Dr. Schneider’s opinion that claimant suffered from no

severe mental impairment. But, because the ALJ gave “only some

weight” or “little weight” to the opinions of claimant’s

treating sources, Admin. Rec. at 24-25, that put the ALJ in the

position of having to rely upon her own lay opinion to infer the

extent to which the symptoms of claimant’s severe mental

impairment impact her residual functional capacity. At least

under the complex circumstances presented by this case, that is

not permitted. As this court has observed:

The court of appeals for this circuit has repeatedly held that since bare medical findings are unintelligible to a lay person in terms of residual functional capacity, the ALJ is not qualified to assess residual functional capacity based on a bare medical record. Accordingly, when assessing a claimant’s RFC, the general rule is that an expert is needed to assess the extent of functional loss.

That general rule, however, is subject to an exception: the Commissioner is not precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as the Commissioner does not overstep the bounds of a lay person’s competence and render a medical judgment. Thus, an expert’s RFC evaluation is required where the record is sufficiently ramified that understanding it requires more than a layperson’s effort at a commonsense functional capacity assessment.

Jabre v. Astrue, No. 11-CV-332-JL,

, at *8

(D.N.H. Apr. 5, 2012) (citations and internal punctuation

omitted), report and recommendation adopted sub nom. Jabre v. US

13 Soc. Sec. Admin., No. 11-CV-332-JL,

(D.N.H. Apr.

9, 2012).

Here, the expert medical opinions upon which the ALJ relied

most heavily - those of Michael Schneider, Psy.D., and Rexford

Burnette, Ph.D. - were decidedly unhelpful to the ALJ in

determining claimant’s RFC. Both reports were prepared well

before claimant’s numerous recent hospitalizations and emergency

room visits. And, as Dr. Burnette himself recognized, his

report (upon which Dr. Schneider relied) was prepared without

the benefit of numerous relevant records about claimant’s

lengthy treatment history for mental health issues.

Given the circumstances, the most prudent course of

action would seem to be for the court to remand this matter

to the ALJ so she may obtain a new, more current

consultative mental examination of claimant (presumably

involving a complete review of all of claimant’s relevant

medical records) and an assessment of the extent to which

claimant’s mental impairment affects her ability to perform

work-related tasks. See generally 20 C.F.R. 416.919.

14 Conclusion

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

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

extent she seeks a remand for further proceedings. The

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 24, 2015, 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

November 14, 2017

cc: D. Lance Tillinghast, Esq. Robert J. Rabuck, Esq.

15