UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Deborah May Coutu

v. Civil No. 17-cv-003-JL Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Deborah Coutu moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits

(“DIB”) under Title II of the Social Security Act,

. The Acting Commissioner, in turn, moves for an order

affirming her decision. For the reasons that follow, this

matter is remanded to the Acting Commissioner for further

proceedings consistent with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement1 is part of the court’s record and will be

summarized here, rather than repeated in full.

In November of 2013, while Coutu was employed as a

supervisor by CVS Pharmacy, she suffered a stroke, and upon

admission to the hospital, she was also diagnosed with migraine

headaches and cardiovascular risk factors of diabetes and

hyperlipidemia. She was out of work from the date of her stroke

until some time in February of 2014. In September of 2015, John

1 Document no. 11 3 Ingalls of CVS wrote a letter in which he described Coutu’s

return to work:

I have worked with Ms. Coutu as her Manager at CVS prior to her stroke in November 2013 and after the stroke when she attempted to return to work on a full- time basis in her prior position as Supervisor. She was unable to perform her supervisory duties and was demoted to a part-time Cashier in an effort to continue her employment with the company in some capacity.

Unfortunately, memory problems, anxiousness, dizzy spells [requiring her to lie down] inability to complete tasks and deal with stressful situations necessitated her transfer to a lower volume store where she could not even maintain a part-time schedule of 15 hours per week. Presently, she is working a few hours, one day per week in a low volume drug store.

We have provided Ms. Coutu an opportunity to work despite her medical conditions. Unlike all other part-time cashiers, she is not required to rotate to various stores as staffing requirements demand. In my opinion, Ms. Coutu would not be able to adjust to a changing work setting whether it be the specific duties she is required to complete or a different store than the one she is used to.

Administrative Transcript (hereinafter “Tr.”) 250.

In December of 2013, approximately one month after her

stroke, Coutu applied to the Social Security Administration

(“SSA”) for disability insurance benefits. She claimed that she

was disabled as a result of her stroke, diabetes, arthritis, and

depression.

The SSA, in turn, referred Coutu to a psychologist for a

consultative examination in March of 2014. However, because the 4 resolution of this case does not hinge on the effects of Coutu’s

mental impairment, there is no need to describe in detail the

results of her psychological examination or the state-agency

psychological consultant’s assessment of her mental residual

functional capacity (“RFC”).2

In April of 2014, a non-examining state-agency physician,

Dr. Jonathan Jaffe, assessed Coutu’s physical RFC. He

determined that she could occasionally lift/carry 20 pounds,

frequently lift/carry 10 pounds, and push/pull the same amount

of weight that she could lift/carry. He also found that she

could both stand/walk and sit (with normal breaks) for about six

hours in an eight-hour workday. With regard to postural

activities, Dr. Jaffe found that Coutu could occasionally climb

ramps/stairs, balance, stoop, crouch, and crawl, but could never

climb ladders/ropes/scaffolds. He also found that Coutu had no

environmental limitations other than a need to avoid even

moderate exposure to hazards such as machinery and heights.

2 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1). 5 Finally, Dr. Jaffe found that Coutu had no manipulative, visual,

or communicative limitations.

The month after her stroke, i.e., in December of 2013,

Coutu began treating with a neurologist, Dr. Khawaja Rahman. In

August of 2015, Dr. Rahman completed a Headaches Medical Source

Statement in which he indicated that Coutu suffered from

moderate migraine headaches that produced the following signs

and symptoms: nausea, mental confusion, inability to

concentrate, exhaustion, and increasing pain with activity.

With regard to Coutu’s capacity for work, Dr. Rahman opined that

she would need to take unscheduled breaks and lie down every

day, that she would be off task at least 25 percent of the time,

and that she was likely to be absent from work due to her

migraines about three days per month.

After the SSA denied Coutu’s application at the initial

level, she received a hearing before an Administrative Law Judge

(“ALJ”). At the hearing, the ALJ posed several hypothetical

questions to a vocational expert (“VE”). First, he asked the VE

what jobs could be performed by a person with the following

characteristics:

[A]ssume that we have a 63 year old [who was] then 61 year[s] old with a 12[th] grade education and the claimant’s work history, has the ability to lift 20 pounds occasionally, 10 pounds frequently, can stand or walk for six hours, sit for six hours, unlimited 6 use for hands and feet to operate controls to push and pull, should never climb ladders, scaffolds, or ropes. The remaining postural are already at occasional and she should avoid unprotected heights. And I would add to that that she [can] handle, understand, and remember and carry out one to three step instructions during the typical two hour periods of a normal eight hour work day and 40 hour work week. She may be slower than the average, but [can work] at an acceptable pace. And can tolerate occasional changes in routine or tasks.

Tr. 53. The VE testified that a person with those

characteristics could perform Coutu’s prior work as a cashier.

But, when the ALJ changed the hypothetical to cover a person who

“would [be] off task 25 percent of the day or more and would be

likely to miss three days per month,”

, the VE

testified that no work would be available to such a person.

After Coutu’s hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

2. The claimant has engaged in substantial gainful activity since November 21, 2013, the alleged onset date (20 CFR 404.1571 et seq.).

. . . .

3. The claimant has the following severe impairments: osteoarthritis, diabetes mellitus, status post cerebrovascular accident, coagulation disorder, and affective disorder (20 CFR 404.1520(c)).

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically 7 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404. 1526).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she should never climb ladders, ropes, [or] scaffolds, but can perform the remainder of the postural activities on an occasional basis. She should avoid exposure to unprotected heights. The claimant can understand, remember, and carry out 1-3 step instructions during typical two-hour periods of [an] eight-hour workday and 40-hour workweek. She may be slower than the average worker, but [can] still work at an acceptable pace. She can tolerate occasional changes in routine work tasks.

. . . .

6. The claimant is capable of performing past relevant work as a cashier. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404. 1565).

Tr. 16, 17, 19-20, 27. According to the ALJ, Coutu was not

disabled, and thus not entitled to benefits, because she: (1)

had engaged in substantial gainful activity during the period

when she claimed to have been unable to work due to her

8 disability; and (2) was capable of performing her past work as a

cashier.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). The only question

in this case is whether the ALJ correctly determined that Coutu

was not under a disability from November 12, 2013, through

November 4, 2015.

To decide whether a claimant is disabled for the purpose of

determining eligibility for DIB, an ALJ is required to employ a

five-step process. See

.

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and

9 age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Coutu’s Claims

Coutu claims that the ALJ erred by: (1) finding that after

her stroke, she never went for at least 12 months without

engaging in substantial gainful activity; (2) failing to

properly evaluate the medical-opinion evidence; and (3) failing

to properly assess the credibility of her statements about her

10 symptoms. Respondent argues that she need not address Coutu’s

first claim because even if the ALJ did err in determining that

Coutu was not entitled to DIB because she had engaged in

substantial gainful activity at a time when she claims to have

been disabled, he correctly determined that her RFC permitted

her to perform her past work as a cashier. The court does not

agree; this case must be remanded because the ALJ did not

properly evaluate the medical-opinion evidence, and the Acting

Commissioner effectively concedes that the ALJ erred at step 1.

Turning to the ALJ’s evaluation of the medical-opinion

evidence, the applicable regulations require ALJs to evaluate

all of the medical opinions that are presented to them. See

(c). Those regulations further establish that,

as a general rule, opinions from treating sources should be

given the greatest amount of weight,3 opinions from sources who

have examined but not treated a claimant should be given lesser

weight, and opinions from sources who have neither treated nor

examined a claimant should be given the least amount of weight.

See

(c)(1)-(2). That said, an “ALJ may give

3 Indeed, if a medical opinion from a treating source is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant’s] case record, [the SSA] will give it controlling weight.”

(c)(2). 11 little weight to a treating source’s opinion if that opinion ‘is

inconsistent with other substantial evidence in the record,

including treatment notes and evaluations by examining and non-

examining physicians.’” Therrien v. Berryhill, No. 16-cv-185-

LM,

, at *5 (D.N.H. Apr. 21, 2017) (quoting Glynn

v. Colvin, No. 16-CV-10145-LTS,

, at *2 (D. Mass.

Feb. 6, 2017)).

When weighing any medical opinion, an ALJ should consider:

(1) the length of the treatment relationship and the frequency

of examination; (2) the nature and extent of the treatment

relationship; (3) the supportability of the opinion; (4) the

consistency of the opinion with the record as a whole; (5) the

specialization of the medical source who provided the opinion;

and (6) other factors. Finally, when explaining the amount of

weight that he gives to the opinion of a treating source, an ALJ

must “give good reasons.”

(c)(2).

Moreover,

[t]o meet the “good reasons” requirement, the ALJ’s reasons must be both specific, see Kenerson v. Astrue, 10-cv-161-SM,

, at *4 (D.N.H. May 20, 2011) (citation omitted), and supportable, see Soto–Cedeño v. Astrue,

(1st Cir. 2010). In sum, the ALJ’s reasons must “offer a rationale that could be accepted by a reasonable mind.” Widlund v. Astrue, No. 11–cv–371–JL,

, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09–11858,

, at *4 (D. Mass. Mar. 12 21, 2011), report and recommendation adopted by

(D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15-cv-005-LM,

, at *6

(D.N.H. Aug. 27, 2015).

In his decision, the ALJ reported that Dr. Rahman, Coutu’s

treating neurologist, had opined that Coutu “would need to take

unscheduled breaks daily in order to lie down and would be of[f]

task 25% or more of the workday [and] would be absent about

three days per month.” Tr. 21-22. He continued:

I have considered this opinion and Dr. Rahman’s status as a treating provider, but find that this opinion is entitled to little weight overall as it is not well supported by or consistent with the evidence of record. Treatment notes, clinical examinations, and daily activities do not support the opinion that the claimant requires unscheduled breaks daily or that she would be off task 25% or more of the workday, as is further discussed below.

Tr. 22. Later on in his decision, the ALJ echoed his earlier

evaluation of Dr. Rahman’s opinion:

As noted above, I give little weight to the opinion of Dr. Rahman as his opinion is not well supported by or consistent with the evidence of record. Treatment notes do not show that the claimant’s condition have [sic] as limiting an effect on her functioning as he described. The most recent notes reflect that the claimant’s reported headaches, which were less intense to second visit [sic]; but in both visits the claimant

13 had normal neurological examination findings and normal vision examination findings.

Tr. 26.

Sandwiched between the two evaluations of Dr. Rahman’s

opinion in which the ALJ actually addressed some of the factors

identified in the regulations, there is this:

With regard to the claimant’s treating physician opinions, the undersigned finds that such are not entitled to controlling weight. The possibility always exists that a doctor may express an opinion in the effort to assist a patient with whom he or she sympathizes for one reason or another. Patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patients’ requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.

Tr. 25.

While there are good reasons not to give controlling weight

to a treating source’s opinion, see Therrien,

,

at *5, it would seem beyond cavil that a treating source’s

status as a treating source is not one of them. Moreover, it

can hardly be doubted that when the SSA adopted the rule that it

would “give more weight to medical opinions from [a claimant’s]

treating sources,”

(c)(2), those who drafted

and adopted the rule understood that treating physicians might

14 have sympathy for their patients, and that understanding is

necessarily “baked into” the rule.

While there is no need to belabor the point, this court has

already registered its discomfort with the kind of unsupported

speculation about treating-source sympathy to which the ALJ

gives free rein in his decision. See Meldrem v. Colvin, No. 16-

cv-156-JL,

, at *3 n.9 (D.N.H. May 23, 2017)

(citing Halla v. Colvin, No. 15-cv-30021-KAR,

, at

*5 (D. Mass. Jan. 20, 2016); Gagnon v. Colvin, No. 1:15-cv-273-

DBH,

, at *4 (D. Me. Jan. 13, 2016)). And this

court is far from alone in finding such speculation to be

unpersuasive and decidedly unhelpful. See, e.g., Sunshine v.

Berryhill, No. 16-cv-446-LM,

, at *5 n.6 (D.N.H.

Jan. 29, 2018) (citing Hill v. Astrue, Civ. No. 12-30018-KPN,

, at *4 (D. Mass. Nov. 15, 2012)); George v.

Colvin, Civ. No. 13-10810-TSH,

, at *9 (D. Mass.

Sept. 30, 2016) (citing Gonzalez v. Astrue, Civ. No. 11-30201-

KPN,

, at *3 (D. Mass. July 5, 2012); Rodriguez

v. Astrue,

(D. Mass. 2010)). In short,

it is sufficient to say that the court is entirely unmoved by

15 the ALJ’s ad hominem suggestion of bias on the part of Coutu’s

treating sources.

Turning to the ALJ’s other reasons for discounting Dr.

Rahman’s opinions, they too fall short. To begin, they tend to

be fairly unspecific. For example, the ALJ says that Dr.

Rahman’s opinion is not supported by Coutu’s daily activities,

“as further discussed below,” Tr. 22, but his subsequent

discussion of Coutu’s daily activities is scant, at best, and

appears to be limited to Coutu’s report to one doctor that she

was walking three times per week for exercise, see Tr. 24, and

her report to another health-care provider that she was “staying

busy at home with decorating, reading, and visiting with

family,”

What is missing from the ALJ’s “discussion” is any

indication of how Coutu’s ability to walk three times a week,

decorate her home, read, and visit with family undercuts or

contradicts Dr. Rahman’s opinion that she would need daily

unscheduled breaks to lie down, would be off task 25% or more of

the workday, and would be absent from work three days per month,

all as a result of her migraines. Moreover, there is no

evidence in the record that Coutu took walks, decorated her

home, read, or visited with her family without significant

interruptions from migraine symptoms or that she performed those

activities in a manner that came anywhere close to approximating 16 the demands of full-time employment. Thus, the ALJ’s

explanation straddles the line between being unspecific and

unsupported.

The ALJ’s determination that Dr. Rahman’s opinion is

unsupported by or inconsistent with his treatment records is

similarly infirm. While the ALJ noted that during Coutu’s two

most recent visits with Dr. Rahman, she “had normal neurological

examination findings and normal vision examination findings,”

Tr. 26, he does not explain how those findings undermine or

contradict Dr. Rahman’s opinion, nor does he say what kind of

neurological examination findings would be necessary to support

an opinion such as the one that Dr. Rahman gave. In addition,

the office notes from Coutu’s two most recent visits to Dr.

Rahman: (1) include reports of daily headaches associated with

dizziness; (2) show that at each visit, Dr. Rahman increased

Coutu’s dosage of amitriptyline,4 which he first prescribed for

her in December of 2013; and (3) indicate that on several

occasions, Coutu had gone to the emergency room for treatment of

headaches accompanied by dizziness. The foregoing information

from Dr. Rahman’s treatment notes, only some of which is

4 Amitriptyline hydrochloride is “[a] chemical compound of the tricyclic antidepressant class that can be used to treat some sleep disorders and neurogenic pain syndromes.” Stedman’s Medical Dictionary 63 (28th ed. 2006). 17 reported in the ALJ’s decision, does not seem unsupportive or

inconsistent with his opinion.

Finally, notwithstanding the ALJ’s blanket statement that

Dr. Rahman’s opinion “is not well supported by or consistent

with the evidence of record,” Tr., 22, 26, the ALJ says nothing

about one important piece of record evidence: John Ingalls’

letter describing Coutu’s attempt to return to work. In his

decision, the ALJ says: “I do recognize that the claimant has

decreased her hours at work, but I do not find that the medical

evidence of record supports a restriction to part-time work.”

Tr. 25. The ALJ’s statement makes it appear as if Coutu reduced

her hours at work, but her hearing testimony and the Ingalls

letter -– both of which are uncontroverted –- demonstrate that

it was CVS who reduced Coutu’s hours, and that it did so several

times because it determined that she was capable of neither

full-time work nor even 15 hours a week of part-time work.

The fact that CVS, rather than Coutu, reduced Coutu’s work

hours aligns this case with Armstrong v. Astrue, No. 10-cv-196-

SM, slip op. at 30-32 (D.N.H. Feb. 28, 2011) ECF No. 23, R. & R.

approved with modifications by ECF No. 26, in which the court

ordered a remand because the ALJ determined that the claimant

had the mental RFC to perform his past relevant work as a

grocery bagger, despite the fact that he had been fired from his 18 bagger job as a result of his inability to follow various work

rules due to a mental impairment. While this case might not be

on all fours with Armstrong, the ALJ’s failure even to mention

the Ingalls letter and his misidentification of the entity

responsible for reducing Coutu’s hours at CVS, in conjunction

with the lack of any meaningful analysis of record evidence that

purportedly contradicts Dr. Rahman’s opinion, precludes the

court from determining that the ALJ’s decision to discount Dr.

Rahman’s opinion is supported by substantial evidence. Given

the VE’s testimony that a person with the limitations expressed

in Dr. Rahman’s opinion would be incapable of any kind of work,

this case must be remanded.

IV. Conclusion

For the reasons given, the Acting Commissioner’s motion for

an order affirming her decision5 is denied, and Coutu’s motion to

reverse that decision6 is granted to the extent that the case is

remanded to the Acting Commissioner for further proceedings,

pursuant to sentence four of

(g). The clerk of

5Document no. 13.

6Document no. 9. 19 the court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Joseph Laplante United States District Judge

Dated: March 13, 2018

cc: Karl E. Osterhout, Esq. Daniel W. McKenna, Esq. T. David Plourde, AUSA

20 21