UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nicole Hafford

v. Civil No. 15-cv-426-PB Opinion No.

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

MEMORANDUM AND ORDER

Nicole Hafford is a twenty-seven year old woman who

previously worked as a cashier and a server. Hafford challenges

the Social Security Administration’s denial of her claim for

disability insurance benefits (“DIB”). The Acting Social

Security Commissioner seeks to have the ruling affirmed.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 11).

Because that joint statement is part of the court’s record, I do

not recount it here. Instead, I discuss facts relevant to the

disposition of this matter as necessary below.

II. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the administrative record and the pleadings submitted by the parties, and to enter judgment affirming, modifying, or

reversing the final decision of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] used the proper legal standards and found facts

[based] upon the proper quantum of evidence.” Ward v. Comm’r of

Soc. Sec.,

(1st Cir. 2000). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater,

(1st

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

2

III. ANALYSIS

Hafford applied for DIB in November 2012, claiming

disability as of April 2010. The ALJ held a hearing in April

2014, at which Hafford and her brother testified. Counsel

represented Hafford at the hearing. In a subsequent written

decision, the ALJ found that Hafford was not disabled.

In the decision, the ALJ used the five-step sequential

process outlined in

(a) to evaluate

Hafford’s claim. At the first step, the ALJ determined that

Hafford had not engaged in substantial gainful employment from

her alleged onset date through her date last insured.

Continuing to step two, the ALJ found a number of severe

impairments: degenerative disc disease, knee pain, history of

seizure disorder, obesity, obstructive sleep apnea, and anxiety

disorder. The ALJ concluded at step three that Hafford’s

impairments did not meet or constitute the medical equivalent of

any listed impairments. Prior to step four, the ALJ assessed

Hafford’s residual functional capacity (“RFC”). Because Hafford

had no past relevant work, the ALJ proceeded past step four and

decided at step five that a significant number of jobs existed

in the national economy that Hafford could perform.

Accordingly, the ALJ found that Hafford was not disabled.

3 In August 2014, the Appeals Council declined to review the

ALJ’s decision, meaning the decision constitutes the final

decision of the Commissioner. The matter is now ripe for

review.

Hafford presents two primary arguments for remand: (1) the

ALJ committed error when calculating her RFC, and (2) the ALJ

impermissibly employed the Medical-Vocational Guidelines at step

five, instead of seeking the guidance of a vocational expert. I

find Hafford’s first argument persuasive and therefore do not

address the second.

A. RFC Argument

A claimant’s RFC is “the most [the claimant] can still do

despite [her] limitations.”

(a)(1). On

appeal, I determine whether the assigned RFC is free of legal

error and supported by substantial evidence. See Nguyen,

.

Here, the ALJ found an RFC with both exertional and non-

exertional limitations. With respect to Hafford’s exertional

ability, the ALJ concluded that Hafford could “perform light

work as defined in 20 CFR 404.1567(b).”1 Tr. at 14. The ALJ

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” § 404.1567(b).

4 incorporated a number of other limitations into Hafford’s RFC:

[Hafford] cannot work around unprotected height or moving machinery; work cannot require her to drive; she is able to understand, recall and carry out short and simple instructions, maintain concentration and attention, maintain attendance and routine and persist to task to complete a normal eight-hour workday day and forty-hour work week without undue interruptions from psychologically based symptoms, can adapt to routine but simple changes, but would need a work environment that is somewhat socially isolated.

Tr. at 14.

In her RFC analysis, the ALJ recounted the hearing

testimony and objective evidence on record. The ALJ first noted

Hafford’s testimony concerning a history of seizures and

unrelieved back pain, and her brother’s testimony as to

Hafford’s anxiety and inability to maintain focus. Tr. at 15.

Turning to the objective evidence, the ALJ found that the

“evidence provides some support to [Hafford’s] allegations” but

“does not support the elevated level of impairment alleged.”

Tr. at 15. She noted that Hafford had a “long history of

epilepsy, confirmed by an April 2010” diagnostic test, but had

not experienced a grand mal seizure since 2008 and had responded

well to treatment in subsequent years. Tr. at 15–16. She

likewise recognized Hafford’s “history of severe obstructive

sleep apnea.” Tr. at 16. Although treatment controlled

Hafford’s apnea symptoms, the ALJ noted that Hafford had not

complied with her apnea treatment in the past. Tr. at 16. The

ALJ last observed that physical examinations had generally not

5 corroborated Hafford’s claims of back and knee pain. Tr. at 16.

The ALJ also discussed several medical opinions concerning

Hafford’s functional capacity. Three opinions dealt primarily

with Hafford’s physical limitations. David Riss, M.D.,

Hafford’s treating physician, opined that Hafford could

occasionally lift less than ten pounds and had several

pronounced limitations in sitting, standing, and postural

activities. Tr. at 461–64. The ALJ found Dr. Riss’ opinion to

be unpersuasive and declined to give it controlling weight. Tr.

at 17. In contrast, the ALJ gave some weight to the opinion of

Peter Loeser, M.D. Tr. at 16. Dr. Loeser performed a physical

examination of Hafford — procured by the state agency — and

concluded that Hafford’s impairments would have, at most, “no

significant effect on functional capacity.” Tr. at 423–24. The

ALJ last considered the opinion of reviewing, agency source

Burton Nault, M.D. Tr. at 17. Dr. Nault determined that

Hafford could perform “light work” with some postural and

environmental limitations. See Tr. at 55–56. The ALJ afforded

substantial weight to Dr. Nault’s opinion, and the RFC

formulated by the ALJ reflected the exertional level, and some

of the limitations, identified by Dr. Nault. Tr. at 17–18.

Two opinions dealt primarily with Hafford’s mental

limitations. Cheryl Bildner, Ph.D., performed a mental

examination of Hafford in March 2013 at the request of the state

6 agency. Dr. Bildner began her written evaluation by describing

Hafford’s presentation and medical history. Tr. at 414–15. Dr.

Bildner then offered several opinions relating to Hafford’s

functional capacity. Hafford could “sustain appropriate

interaction and communication in low stress and small-group

settings,” but “becomes overly anxious” in other settings. Tr.

at 417. She could also “sustain attention . . . for brief

periods of time.” Tr. at 417. “Due to reported fatigue, lack

of motivation and diminished threshold for anxiety,” however,

Hafford could not “sustain task completion for prolonged

periods.” Tr. at 417. Nor was she able to “persist at

challenging tasks.” Tr. at 417. Most pertinent for this case,

Dr. Bildner wrote that Hafford “will become overwhelmed with

chronic and persistent stress” in the workplace and “is able to

maintain attendance for a part-time position.” Tr. at 417. The

ALJ mentioned several of Dr. Bildner’s findings at step three

and in determining Hafford’s RFC, Tr. at 13–14, 17, but did not

mention the part-time-work limitation or explicitly assign

weight to Dr. Bildner’s opinion.

The ALJ did assign substantial weight to the opinion of

reviewing, agency source Laura Landerman, Ph.D., because her

opinion was not “inconsistent with the medical evidence as a

whole.” Tr. at 17. Dr. Landerman ultimately concluded that

Hafford could maintain full-time employment, though she

7 identified several limitations: Hafford could follow “short and

simple instructions,” endure “routine and simple changes,” and

had to have a semi-socially-isolated workstation with a

supervisor who was not “overly harsh or critical.” Tr. at 57–

58. Dr. Landerman placed “primary weight” on Dr. Bildner’s

opinion. Tr. at 59. She did not, however, identify Dr.

Bildner’s part-time-work limitation as a point of conflict. The

ALJ incorporated most of Dr. Landerman’s findings into the RFC.

Hafford claims the ALJ made several errors in calculating

her RFC. First, she argues that the ALJ ignored Dr. Bildner’s

limitation to part-time work and failed to explain why she did

not include a part-time limitation in Hafford’s RFC. See Doc.

No. 8 at 4–5, 8; Doc. No. 13 at 3. Indeed, the ALJ found that

Hafford could adequately “complete a normal eight-hour workday

day and forty-hour work week.” Tr. at 14. Failing to address

the limitation was not harmless error, according to Hafford,

because inclusion would have compelled a finding of disability.

See Doc. No. 8 at 8. I find this argument persuasive and do not

address her other RFC arguments.

The ALJ must assess a claimant’s RFC “based on all of the

relevant medical and other evidence.” § 404.1545(a)(3); see

also Nguyen,

(stating an ALJ may not ignore

evidence). Specifically, the ALJ must evaluate every medical

opinion in the case record and “explain in the decision the

8 weight given to the opinions of . . . treating sources,

nontreating sources, and other nonexamining sources.” §

404.1527(c), (e)(2)(ii) (2016) (since amended). The need to

address opinion evidence is most pronounced where the evidence

conflicts with the ALJ’s determination. Accordingly, “[i]f the

RFC assessment conflicts with an opinion from a medical source,

the adjudicator must explain why the opinion was not adopted.”

SSR 96-8P,

, at *7 (July 2, 1996). In sum,

“[a]lthough an ALJ is free to independently evaluate the weight

of a particular medical opinion in the record that supports a

claimant’s position, an ALJ is not free to simply ignore it.”

Grenier v. Colvin,

.

In this case, ALJ was required to address Dr. Bildner’s

opinion that Hafford “is able to maintain attendance for a part-

time position.” Tr. at 417. The ALJ’s failure to do so

constitutes reversible error. The limitation plainly conflicts

with the RFC found by the ALJ, and if the limitation were

incorporated into the RFC, it would produce a finding of

disability in this case. See Huse v. Colvin,

;

Mitchell v. Astrue,

, 15–16. Moreover, the

limitation was not conclusory, but expressed in the context of

Hafford’s related impairments. Dr. Bildner found that Hafford

was “unable to sustain task completion for prolonged periods of

time” due to her reported symptoms, and could not “persist at

9 challenging tasks.” Tr. at 417. And even though Hafford could

“tolerate minor stressors in” the workplace, she would “become

overwhelmed with chronic and persistent stress.” Tr. at 417.

Although the ALJ identified and discussed parts of Dr.

Bildner’s opinion at step three and in formulating the RFC, the

ALJ did not mention the part-time-work limitation and did not

provide an explanation for excluding that limitation from the

RFC. Tr. at 13–14, 17. Nor did the ALJ explicitly note the

weight given to Dr. Bildner’s opinion. Importantly, Dr.

Bildner’s limitation was not cumulative of other evidence in the

record that the ALJ did address.2 See Lord v. Apfel,

(D.N.H. 2000). Thus, remand is appropriate.

See Charron v. Astrue,

, 13–14, 17; Morse v. US Soc.

Sec. Admin., Com’r, No. 12-CV-446-PB,

, at *8

(D.N.H. Oct. 25, 2013).

The Acting Commissioner advances several arguments to save

the ALJ’s decision. None is persuasive. First, the Acting

Commissioner contends that “Dr. Bildner never said that

[Hafford] was only limited to part-time work.” Doc. No. 10-1 at

6. The statement could merely have been a reference to

Hafford’s history of part-time work. The Acting Commissioner

2 The ALJ noted that Hafford’s brother “opined that [Hafford] could not complete a forty hour work week.” Tr. at 15. The opinions of a claimant’s family member and a mental health specialist are sufficiently distinct that mention of the former does not excuse failing to address the latter.

10 goes on to argue that Dr. Landerman’s reviewing opinion supports

this interpretation of Dr. Bildner’s opinion.

Dr.

Landerman gave “primary weight” to Dr. Bildner’s opinion, but

did not identify the part-time statement as a conflicting

limitation. See

This argument fails. To start, a statement of limited

ability in this context is generally exclusive of more robust

abilities. More fundamentally, it is the responsibility of the

ALJ to resolve conflicts in the evidence. Irlanda Ortiz,

. Where a medical source opinion can be reasonably

read to include the kind of limitation involved here, the ALJ is

obliged to explain the meaning of the opinion or address it as a

limitation. Otherwise, a court would not be able to review the

reasoning or evidence underlying the ALJ’s decision. Cf. Dube

v. Astrue,

(D.N.H. 2011).

The Acting Commissioner next argues that the ALJ did not

need to expressly evaluate Dr. Bildner’s opinion because Dr.

Landerman relied on, and adequately evaluated, Dr. Bildner’s

opinion. See Doc. No. 10-1 at 7. I reject this argument

because it is based on a mistaken premise. See Grenier,

, 9–11 (rejecting a similar argument). Although Dr.

Landerman gave “primary weight” to Dr. Bildner’s opinion, she

did not identify or discuss her part-time-work limitation. Tr.

at 59. Because Dr. Landerman did not explicitly recognize the

11 tension between her opinion and Dr. Bildner’s, let alone resolve

that tension on the record, I cannot conclude that Dr. Landerman

discharged the ALJ’s duty to resolve conflicts in the evidence.

If anything, placing weight on Dr. Bildner’s opinion under these

circumstances “only accentuated the need” for the ALJ to address

the part-time-work limitation. Grenier,

, 10 n.2.3

Last, the Acting Commissioner maintains that the ALJ’s

failure to evaluate Dr. Bildner’s opinion amounts only to

harmless error. See Doc. No. 10-1 at 8. I disagree. Dr.

Bildner was one of only two mental health specialists cited by

the ALJ, and adoption of Dr. Bildner’s part-time-work limitation

would have required a finding of disability. See Taylor v.

Astrue,

(D. Mass. 2012). In this case,

it remained the ALJ’s obligation to explicitly address the

conflict in the evidence.4

3 The Acting Commissioner cites a number of cases in support of her argument. See Doc. No. 10-1 at 7–8. These cases do not compel a different result. Cf., e.g., Martel v. U.S. Soc. Sec. Admin., Com’r,

, 22–23, 28–29 (finding no error where ALJ explicitly and supportably discounted opinions containing disputed limitation).

4 Although I do not address the ALJ’s reliance on the Medical- Vocational Guidelines at step five, I repeat the First Circuit’s guidance “that an ALJ typically should err on the side of taking vocational evidence when [a nonexertional] limitation is present in order to avoid needless agency rehearings.” Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1989) (per curiam).

12 IV. CONCLUSION

I grant Hafford’s motion to reverse the Commissioner’s

decision (Doc. No. 8) and deny the Acting Commissioner’s motion

to affirm her decision (Doc. No. 10). Pursuant to sentence four

of

(g), I remand the case to the Social Security

Administration for further proceedings consistent with this

decision.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 27, 2017

cc: Penelope E. Gronbeck, Esq. Robert J. Rabuck, Esq.

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