UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Ruth Edwards

v. Civil No. 17-cv-232-AJ Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Jennifer Edwards moves to

reverse the decision of the Acting Commissioner of the Social

Security Administration (“SSA”) to deny her applications for

Social Security disability insurance benefits, or DIB, under

Title II of the Social Security Act,

, and for

supplemental security income, or SSI, under Title XVI,

. 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) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

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

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 (doc. no. 15), which is part of the court’s record and

will be summarized here, rather than repeated in full.

Edwards has been diagnosed with, and has received treatment

for, a variety of physical and mental impairments. These

include degenerative disc disease, for which she had two

3 surgeries (in July 2009 and January 2014), and osteoarthritis in

her left knee, for which she had a total knee replacement (in

August 2013). It is sufficient to say that Edwards’ treatment

history is extensive. See Joint Statement (doc. no. 15) 1-16.

Edwards first applied for DIB and SSI in February 2012,

claiming that she had been disabled since June 6, 2009, as a

result of failed lower back surgery, bipolar disorder,

depression, and extreme anxiety. In April 2012, Edwards’

physical residual functional capacity (“RFC”) 1 was assessed by a

single decision maker (“SDM”), i.e., an SSA “employee with no

medical credentials,” Stratton v. Astrue,

,

138 n.3 (D.N.H. 2012) (quoting Goupil v. Barnhart, No. 03-34-P-

H,

, at *2 n.3 (D. Me. Oct. 31, 2003)). After

reviewing Edwards’ medical records, the SDM determined that she

could lift and/or carry 20 pounds occasionally and 10 pounds

frequently, stand and/or walk (with normal breaks) for a total

of about two hours in an eight-hour workday, sit (with normal

breaks) for about six hours in an eight-hour workday, and push

and/or pull the same amount she could lift and/or carry. The

SDM also determined that Edwards had no manipulative, visual,

communicative, or environmental limitations, and could

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

(a)(1) & 416.945(a)(1).

4 occasionally perform each of the postural activities (climbing

ramps and stairs; climbing ladders, ropes, and scaffolds;

balancing; stooping; kneeling; crouching; and crawling).

In addition to the SDM’s RFC assessment, the record also

includes multiple statements from medical sources that touch on

various aspects of Edwards’ physical and mental RFC. Three of

those statements are relevant to Edwards’ appeal.

First, in June 2013, Dr. Melissa Hanrahan, Edwards’

treating physician since November 2005, completed a form that

asked her to assess Edwards’ non-exertional and/or psychological

limitations.

Second, in April 2015, Dr. Frank Graf reviewed Edwards’

medical records, 2 gave her an orthopedic consultative

examination, and wrote a report on the examination. 3 In his

report, he made the following diagnosis:

Chronic lumbosacral pain, chronic regional pain syndrome, continued opiate dependency, failed laminotomy discectomy, and interbody fusion L5-S1 with chronic regional lumbosacral pain. Status post left total knee replacement with instability at the left knee and chronic atrophy of the left thigh; depression and bipolar disorder with no current suicidal or

2 Specifically, Dr. Graf mentioned eight different medical records produced by approximately a half dozen providers and identified a wide range of medical findings, diagnoses, and treatments.

3 “A consultative examination is a physical or mental examination or test purchased for [a claimant] at [the SSA’s] request.”

& 416.919.

5 homicidal ideation, but past history of hospitalization.

Tr. 793. 4

In addition to writing a report, Dr. Graf also completed a

Medical Source Statement of Ability to Do Work-Related

Activities (Physical). In it, he opined that Edwards could:

lift up to 20 pounds occasionally, carry up to 10 pounds

occasionally, sit for one hour at a time without interruption,

stand for 30 minutes at a time without interruption and for 15-

30 minutes total in an eight-hour workday, and walk for 20

minutes at a time without interruption and for 15 minutes total

in an eight-hour workday. 5 He further stated that when Edwards

was not sitting, standing, or walking, she needed to recline.

He went on to opine that Edwards could never reach overhead with

either hand, but could occasionally perform all other forms of

reaching, and could perform handling, fingering, feeling, and

pushing/pulling with either hand occasionally. He also opined

that Edwards could occasionally use either foot to operate foot

4 Laminotomy is “[e]xcision of a portion of a vertebral lamina resulting in enlargement of the intervertebral foramen for the purpose of relieving pressure in a spinal nerve root.” Stedman’s Medical Dictionary 1046 (28th ed. 2006). Discectomy is “[e]xcision, in part or whole, of an intervertebral disk. Id. at 550.

5 While Dr. Graf indicated that Edwards could sit for one hour at a time without interruption, he did not check any of the boxes designating responses to a question about the total amount of time she could sit during an eight-hour workday. 6 controls. With regard to postural activities, Dr. Graf opined

that Edwards could never climb ladders or scaffolds, kneel,

crouch, or crawl, but that she could occasionally climb stairs

and ramps, balance, and stoop. He found no hearing or vision

limitations. With respect to environmental limitations, he

found that Edwards could never tolerate exposure to unprotected

heights, moving mechanical parts, or vibrations, but could

occasionally tolerate operating a motor vehicle, humidity,

wetness, dust, odors, fumes, pulmonary irritants, extreme cold,

and extreme heat. Finally, Dr. Graf opined that Edwards could

not travel without a companion for assistance, walk a block at a

reasonable pace on rough or uneven surfaces, or use standard

public transportation, but he also opined that she could perform

six other activities of daily living.

Third, at the November 10, 2015, hearing on Edwards’

applications, 6 the Administrative Law Judge (“ALJ”) took

testimony from Dr. John Kwock, a board certified orthopedic

surgeon who reviewed Edwards’ medical records but who had

neither treated nor examined her. With respect to exertional

limitations, Dr. Kwock gave the following testimony:

[I]t’s my opinion that she is still capable of doing light work. That is to say she can lift and carry up to 10 pounds on a frequent basis, 11 to 20 pounds on

6 This was the second hearing on Edwards’ applications, but there is no need for the court to further describe the procedural history of her case. 7 an occasional basis, 21 to 50 pounds never. As far as sit, stand, walk is a concern, again, most of her back problem is limited to L4, 5, L5, S1 so although she still may have that irritation. It’s my opinion that she still can sit for six out of the eight, that she can stand for four hours out of the eight and walk for two hours out of the eight. Posturals I believe are appropriate and the lower extremities climbing ramps and stairs occasional, climbing ladders, ropes and scaffolds, never, balancing, occasional, stooping occasional, kneeling, never, crouching, never, crawling, never, upper extremity posturals are reaching waist to chest continuous, reaching above shoulder occasional, handling, continuous, fingering continuous, feeling is continuous.

Tr. 113-14. Dr. Kwock identified two environmental limitations,

i.e., a need to avoid “high exposed areas,” Tr. 115, and a need

to avoid “proximity to moving mechanical parts,” id.

After Edwards’ hearing, the ALJ issued a decision that

includes the following relevant findings of fact:

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that she could occasionally lift and carry up to twenty pounds and frequently lift and carry up to ten pounds; she could sit for a total of six hours out [of] an eight-hour day with normal breaks, stand for four hours out of an eight-hour day with normal breaks and walk for two hours out of an eight-hour day with normal breaks. Additionally, she could not climb ladders, ropes, or scaffolds and could not crawl, crouch or kneel. She could occasionally stoop, balance and climb stairs and ramps. She could occasionally reach overhead. She has no limitations on other manipulative activities. She would not be able to be exposed to unprotected heights and would have to avoid dangerous moving machinery. In addition, she could perform uncomplicated tasks (meaning tasks that typically can be learned in thirty days or less) and she could maintain concentration,

8 persistence and pace for two-hour blocks of time throughout the workday.

Tr. 34.

At Edwards’ hearing, the ALJ posed a hypothetical question

to a vocational expert (“VE”) that incorporated the RFC recited

above, along with Edwards’ age, education, and work experience.

According to the VE, a person with those characteristics would

be able to perform the light-duty jobs of cashier II, ticket

taker, and price marker and the sedentary jobs of election

clerk, document preparer, and charge-account clerk. But, the

ALJ went on to stipulate that if she adopted the limitations in

Dr. Graf’s Medical Source Statement, that would result in a

finding that Edwards was disabled. Moreover, given the other

opinions that Dr. Graf gave in his Medical Source Statement,

there can be no doubt that when the ALJ said that adopting Dr.

Graf’s opinion would result in a finding of disability, she was

referring to Dr. Graf’s opinions on Edwards’ capacities for

sitting, standing, and walking. 7

7 The limitations on sitting, standing, and walking must have been the deal-breaker because Dr. Graf’s limitations on lifting and carrying would not preclude sedentary work, see

(a) & 416.967(a), and there is no VE testimony to suggest that any of the other limitations in Dr. Graf’s statement would preclude work.

9 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). To be eligible for

supplemental security income, a person must be aged, blind, or

disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether there is substantial evidence to support the

ALJ’s determination that Edwards was not under a disability from

May 6, 2009, through December 16, 2015.

To determine whether a claimant is disabled for the purpose

of determining eligibility for either DIB or SSI benefits, an

ALJ is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

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

10 Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

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 [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. Edwards’ Claims

Edwards claims that the ALJ’s RFC assessment is not

supported by substantial evidence because the ALJ made four

errors in evaluating the medical-opinion evidence: (1) giving

either “no weight,” Tr. 32, or “little weight,”

to the

opinions in Dr. Hanrahan’s non-exertional limitations form; (2)

giving “little weight,” Tr. 42, to the opinions in Dr. Graf’s

Medical Source Statement; (3) giving “some weight,” Tr. 44, to

the administrative findings made by the SDM; and (4) giving

11 “greatest weight,” Tr. 44, to the opinions expressed by Dr.

Kwock at Edwards’ hearing. Edwards’ second claim is persuasive

and dispositive. In this section, the court begins by

discussing the applicable legal principles, then turns to the

ALJ’s assessment of Dr. Graf’s opinions, and concludes with

several observations that the SSA may wish consider on remand.

1. Legal Principles

The SSA is required to evaluate every medical opinion that

it receives. See

(c) & 416.927(c).

Moreover, the Social Security regulations describe a hierarchy

of medical opinions that generally favors those from treating

sources, gives lesser weight to those from sources who have only

examined a claimant, and gives the least amount of weight to

opinions from sources who have neither examined nor treated a

claimant. See

(c)(1)-(2) & 416.927(c)(1)-

(2). In weighing any medical opinion, the SSA, and by extension

an ALJ, should consider: (1) the length of the medical source’s

treatment relationship with the claimant, if any, and the

frequency of his or her examination of the claimant, if any; (2)

the nature and extent of the claimant’s treatment relationship

with the medical source; (3) the opinion’s supportability; (4)

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

specialization of the medical source who provided the opinion;

and (6) other factors. See

(c)(2)-(6) &

12 416.927(c)(2)-(6).

2. Dr. Graf’s Opinions

Here, the ALJ found that the opinions in Dr. Graf’s Medical

Source Statement were “not persuasive,” Tr. 42, and, as a

consequence, she accorded them “little weight,” Tr. 43. She

offered several reasons for discounting Dr. Graf’s opinions,

including these: (1) Dr. Graf’s “limitations regarding sitting,

standing and walking are contradictory,” Tr. 42, and “his report

does not explain his contradictory statements,” id.; (2) Dr.

Graf’s limitations on sitting, standing, and walking are

unsupported by his report on the examination he gave Edwards;

and (3) “[c]onsidering that the claimant reports spending a fair

amount of her time sitting, it is not clear why Dr. Graf limits

her to just one hour of sitting, or why he limits her to just

fifteen to thirty minutes of standing and walking, yet states

that she does not require any assistive devices for ambulation,”

8 While it is perhaps a close call, the court concludes that

the ALJ’s reasons for discounting Dr. Graf’s opinions on

8 The ALJ also criticized as unsupported Dr. Graf’s opinions that Edwards “cannot travel without accompaniment, cannot use public transportation, can tolerate only a moderate level of workplace noise, cannot reach overhead at all with either upper extremity and can only occasionally use her arms and hands for gross and fine motor movements.” Tr. 42. Because the ALJ’s unsupported rejection of Dr. Graf’s opinions on Edwards’ capacities for sitting, standing, and walking was a reversible error, there is no need to address the ALJ’s rejection of Dr. Graf’s opinions on these other matters. 13 Edwards’ capacities for sitting, standing, and walking are not

supported by substantial evidence.

To begin, the court acknowledges the confusion created by

the manner in which Dr. Graf responded to the questions on the

Medical Source Statement form concerning Edwards’ capacities for

sitting, standing, and walking. Obviously, it was illogical for

him to say that Edwards could stand for 30 minutes at a time,

but could only stand for 15 to 30 minutes a day, and it was

equally illogical for him to say that Edwards could walk for 20

minutes at a time, but could only walk for 15 minutes a day.

Presuming that the illogical findings reported on the form are

not what Dr. Graf actually had in mind, it would seem reasonable

to resolve the confusion by concluding that Dr. Graf merely

transposed his responses, listing his “at one time” answers in

the spaces for the “total per day” answers, and vice versa.

Notwithstanding the confusion created by the manner in which Dr.

Graf filled out his Medical Source Statement, the ALJ understood

that statement well enough to stipulate that if she found Dr.

Graf’s opinions on Edwards’ capacities for sitting, standing,

and walking to be supported, “that would result in a finding of

disability,” Tr. 141. Because the ALJ understood Dr. Graf’s

Medical Source Statement well enough to say that it expressed

opinions that, if adopted, would establish disability, the

confusing manner in which Dr. Graf completed that form is not

14 substantial evidence to support the ALJ’s rejection of Dr.

Graf’s opinions on Edwards’ capacities for sitting, standing,

and walking.

The ALJ also discounted Dr. Graf’s opinions because, in her

view, they were not supported by the report he prepared after he

examined Edwards. Lack of evidentiary support is a valid reason

for discounting a medical opinion. See

(c)(3) & 416.927(c)(3) (“[t]he more a medical source

presents relevant evidence to support a medical opinion,

particularly medical signs and laboratory findings, the more

weight we will give that medical opinion”). However, the ALJ’s

determination that Dr. Graf’s opinion was ill supported is,

itself, not supported by substantial evidence.

This is how Dr. Graf characterized the findings from his

physical examination of Edwards:

Lumbosacral and lower extremity examination performed. At the left knee there is a 14 cm anterior incision. Difficult for total knee arthroplasty. There is full extension to 108 degrees of flexion. There is pain on palpation at the inferior pole of the incision overlying the tibial tubercle. There is 2+ anteroposterior laxity at the left knee. There is an atrophy of the left thigh measuring 49 cm left thigh versus 52 cm right thigh. There is an increased circumference at the left knee 41 cm versus 39 on the right. At the right knee there is a prominent patella crepitation. The right tendo Achilles reflex is absent. Sitting, supine, lying, straight leg raise elicits low back pain. There is a 14 cm lumbosacral incision present at the low back. There are marked restrictions in lumbosacral ranges of motion. In standing position 7 degrees, sacrum -13 degrees T12,

15 forward bend 17 degrees, sacrum +2 degrees, T12 10 degrees, left lateral bend, 16 degrees of right lateral bend, extension -1 degrees sacrum, -19 degrees T12. There is weakness on ankle pivots at the right ankle in dorsiflexion, plantar flexion, and the patient cannot heel walk consecutively because of both weakness and increased low back pain. Side lying examination of the lumbosacral spine elicits a marked pain reaction at the L5 and L4 segmental levels.

Tr. 793. 9 The court does not pretend to understand all the

medical terminology in Dr. Graf’s examination report, but apart

from making a conclusory statement that Dr. Graf’s opinions were

not supported, the ALJ said nothing about how the foregoing

examination findings do not support Dr. Graf’s opinions on

Edwards’ capacities for sitting, standing, and walking.

Accordingly, the ALJ’s finding that Dr. Graf’s opinions on those

capacities lacked support in his examination report is, itself,

not supported by substantial evidence.

Finally, the ALJ discounted Dr. Graf’s opinion on Edwards’

capacity for sitting because it was inconsistent with claimant’s

reports that she spends “a fair amount her time sitting,” Tr.

42. Inconsistency with the record as a whole is a valid reason

for discounting a medical opinion. See

(c)(4) & 416.927(c)(4) (“the more consistent a medical

opinion is with the record as a whole, the more weight we will

9 Crepitation is “[n]oise or vibration produced by rubbing bone or irregular degenerated cartilage surfaces together as in arthritis and other conditions.” Stedman’s, supra note 4, at 457. 16 give that medical opinion”). However, the ALJ’s determination

that Dr. Graf’s opinion was inconsistent with the record as a

whole is not supported by substantial evidence.

The ALJ faulted Dr. Graf for limiting Edwards to just one

hour of sitting when “she report[ed] spending a fair amount of

her time sitting,” Tr. 42. But the ALJ did not support that

statement with any citation to evidence that documents reports

by Edwards that she spent a substantial amount of time sitting.

And at her hearing, Edwards gave testimony that was quite

consistent with Dr. Graf’s opinion. When the ALJ asked Edwards

to explain why she believed she could not work, she responded:

“I have a lot of trouble sitting for more than 30 minutes.” Tr.

89. Later in the hearing, the following exchange took place

between Edwards and her counsel:

Q. How much of your time during the day do you spend reclining?

A. I would say a good 80 to 90 percent of my time.

Q. When you recline do you just lie on a couch? Do you lie in bed?

A. I have a recliner on my couch and that’s where, either that or I’ll put my feet up on the couch so that I’m more even.

Tr. 99. If one accepts the proposition that reclining and

sitting are two different things, then the foregoing testimony

is: (1) entirely consistent with Dr. Graf’s opinion that Edwards

17 had a severely limited capacity for sitting; and (2)

diametrically opposed to the ALJ’s statement that Edwards had

reported that she spent “a fair amount of her time sitting,” Tr.

42. The Acting Commissioner contends, in reliance upon the

exchange quoted above, that “the ALJ explicitly acknowledged

Plaintiff’s allegation that she ‘often sits in a recliner or

puts her feet up,’” Resp’t’s Mem. of Law (doc. no. 16-1) 18,

but, clearly, Edwards testified that she reclined in her

recliner/couch 80 of 90 percent of the day, not that she sat a

“fair amount” of the time. In other words, both the ALJ and the

Acting Commissioner have misconstrued Edwards’ testimony.

Because the ALJ identified no evidence that supports her

rejection of Dr. Graf’s opinion, her rejection of that opinion

is, necessarily, not supported by substantial evidence.

To sum up, the ALJ gave three reasons for discounting Dr.

Graf’s opinions on Edwards’ capacities for sitting, standing,

and walking. None of the three is supported by substantial

evidence. Given the ALJ’s own stipulation that adoption of Dr.

Graf’s opinions on Edwards’ capacities for sitting, standing,

and walking would result in a finding of disability, remand is

required.

3. Other Matters

Because this case is being remanded as a result of the

manner in which the ALJ evaluated Dr. Graf’s opinions, there is

18 no need to fully address Edwards’ other claims of error. There

are, however, several problems with the ALJ’s decision that

should probably be addressed on remand.

First, in her decision, the ALJ called Dr. Graf’s

“statements concerning [Edwards’] specific limitations . . .

contradictory and, at times, illogical,” Tr. 42, and the Acting

Commissioner argues that “[t]he fact that Dr. Graf plainly made

a mistake by opining that Plaintiff could walk for fewer minutes

total than he [sic] walk at a time casts doubt on the

reliability of the rest of Dr. Graf’s opinion,” Resp’t’s Mem. of

Law (doc. no. 16-1) 17. In that same spirit, the court notes

that over the course of two pages of her decision, the ALJ

wrote: (1) “she [i.e., Edwards] has never been hospitalized for

psychiatric reasons,” Tr. 28; (2) “she has never been

psychiatrically hospitalized,” id.; (3) “she had experienced

depressive episodes all her life that never interfered with her

ability to work until she had her third child and was briefly

hospitalized for three days,” id.; and (4) “[s]he described . .

. her prior brief hospitalization for depression many years

ago,” Tr. 29. The ALJ’s discussion of Edwards’ history of

psychiatric hospitalization is at least as contradictory as Dr.

Graf’s attempt to complete the Medical Source Statement form.

Similarly, the ALJ referred to “the administrative findings

of fact made by the state agency non-examining medical

19 physician,” Tr. 44, 10 when, in fact, the findings at issue were

not made by a “medical physician,” but were made by an SSA

“employee with no medical credentials,” Stratton,

n.3. The Acting Commissioner acknowledges the ALJ’s

error, and attempts to brush it off as harmless, but following

the Acting Commissioner’s own line of reasoning, the ALJ’s

error, even if substantively harmless, still casts doubt on the

reliability of the rest of her decision.

In addition, apparently following Dr. Kwock’s lead, the ALJ

stated that Dr. Graf was the only physician who noted atrophy in

Edwards’ left thigh, see Tr. 43, 118, and was the only physician

who noted an absence of a right ankle reflex, see Tr. 44, 117.

However, it is unclear how the number of physicians who made

those findings has any bearing on any issue in this case. To be

sure, the applicable regulations provide that when an ALJ

evaluates a medical opinion, she should take into account the

degree to which that opinion is supported by medical evidence,

see

(c)(3) & 416.927(c)(3). But the court

is aware of nothing in the regulations that would encourage or

even permit an ALJ to evaluate a medical finding based upon the

degree to which it is corroborated by findings made by other

physicians, and if the ALJ’s point is to call into question the

10The ALJ also referred to the SDM as “a non-examining and non- treating expert source.” Tr. 44. 20 validity of Dr. Graf’s atrophy and reflex findings, she does not

say so. And plainly, if a patient developed a medical condition

in 2015, a medical note describing that condition in 2016 is not

rendered less reliable by the fact that medical notes made in

2014 do not mention the condition. In short, it does not appear

that the ALJ’s discussion of Dr. Graf’s examination findings

added anything of value to her decision.

Finally, the court notes that while the applicable

regulations list six factors that the SSA, and ALJs, should

consider when evaluating medical opinions, see

(c)(2)-(6) & 416.927(c)(2)-(6), the ALJ’s evaluation of

Dr. Kwock’s opinion is limited to this: “greatest weight is

accorded to Dr. Kwock’s opinion, as he had the benefit of

reviewing the entire body of medical evidence on the record,”

Tr. 44. However, Dr. Kwock testified on November 10, 2015, just

over six months after Dr. Graf wrote a report that listed a

rather substantial set of medical records that he had reviewed,

see Tr. 792, and the ALJ identified no specific medical records

that Dr. Kwock reviewed that Dr. Graf did not. Accordingly, Dr.

Kwock’s access to “the entire body of medical evidence on the

record,” Tr. 44, does not necessarily distinguish Dr. Kwock’s

opinion from Dr. Graf’s, and thus, it does not appear to be

substantial evidence that would support the ALJ’s decision to

credit Dr. Kwock’s opinion over Dr. Graf’s.

21 IV. Conclusion

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

an order affirming her decision, doc. no. 16, is denied, and

Edwards’ motion to reverse that decision, doc. no. 10, 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 the court shall enter

judgment in accordance with this Order and close the case.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

March 7, 2018

cc: Edward A. Wicklund, Esq. Janine Gawryl, Esq. Robert J. Rabuck, Esq.

22