UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kristen Inserra, Claimant Case No. 17-cv-197-SM v. Opinion No.

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

O R D E R

Pursuant to

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

Kristen Inserra, moves to reverse or vacate the Acting

Commissioner’s decision denying her applications for Disability

Insurance Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, the “Act”). Claimant

asserts, among other things, that the ALJ failed to give

appropriate weight to the opinions of her treating physician.

The Acting Commissioner objects and moves for an order affirming

her decision.

For the reasons discussed below, claimant’s motion is

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

I. Procedural History.

In September of 2013, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that she was disabled and had been

unable to work since July 18, 2013. Claimant was 42 years old

at the time and had acquired sufficient quarters of coverage to

remain insured through December 31, 2017. Claimant’s

applications were denied and she requested a hearing before an

Administrative Law Judge (“ALJ”).

In January of 2016, claimant, her attorney, and an

impartial vocational expert appeared before an ALJ, who

considered claimant’s applications de novo. Seven weeks later,

the ALJ issued his written decision, concluding that claimant

was not disabled, as that term is defined in the Act, at any

time prior to the date of his decision. Claimant then requested

review by the Appeals Council. That request was denied.

Accordingly, the ALJ’s denial of claimant’s applications 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.

2 Claimant then filed a “Motion to Reverse” the decision of

the Commissioner (document no. 7). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 11). 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. 12), 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

3 evidence is “such relevant evidence as a reasonable mind might

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 and/or DIB benefits is disabled

under the Act if he or 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.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). 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

4 former type of work. See Manso-Pizarro v. Secretary of Health &

Human Services,

(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

, 404.1560, 416.912, and 416.960.

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

(d)(2)(A). See also 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.

5 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

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: July 18, 2013. Admin.

Rec. at 16. Next, he concluded that claimant suffers from the

following severe impairments: “diabetes mellitus, diabetic

neuropathy, and right shoulder impairment.” Id. at 17. 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 19.

Next, the ALJ concluded that claimant retained the residual

functional capacity to perform the exertional demands of “light”

work, subject to the following limitations:

claimant can only stand and/or walk for a total of four hours in an eight-hour day and sit for about six hours in an eight-hour day. The claimant has unlimited use of her hands and feet to push and pull. The claimant can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, and balance, kneel, crouch, stoop, and crawl. The claimant can occasionally reach overhead with her

6 right upper extremity and should avoid concentrated exposure to extreme heat, cold, and vibration and all exposure to unprotected heights.

Admin. Rec. at 20. In light of those restrictions, the ALJ

concluded that claimant was capable of performing her past

relevant work as an account clerk (which the vocational expert

testified was performed at both the light and sedentary work

level). Id. at 26. See also Id. at 48-49 (vocational expert’s

testimony about claimant’s work history).

Despite having concluded, at step four of the sequential

analysis, that claimant is not disabled, the ALJ continued to

step five of that analysis and made additional (alternate)

findings. Specifically, he considered whether there were any

other jobs in the national economy that claimant might perform,

despite her impairments. Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding

claimant’s exertional and non-exertional limitations, “there are

other jobs that exist in significant numbers in the national

economy that the claimant also can perform.” Id. at 26.

Consequently, the ALJ concluded that claimant was not

“disabled,” as that term is defined in the Act, through the date

of his decision. Id. at 27.

7 Discussion

I. Claimant’s Assertions of Error.

Claimant challenges the ALJ’s decision on four grounds,

asserting that he erred by: (1) erroneously determining her

Residual Functional Capacity (“RFC”); (2) failing to give

appropriate weight to the opinions of her treating physician,

Dr. Kaploe, while giving inordinate weight to those of state

agency consultant, Dr. Fairley; (3) improperly concluding, at

step four, that claimant could perform her past relevant work;

and (4) relying upon inaccurate and/or unreliable vocational

expert testimony that was based upon a flawed residual

functional capacity assessment.

Because the court agrees that the ALJ erred in failing to

give appropriate weight to the opinions of claimant’s treating

source (or by failing to adequately justify his decision to give

those opinions “little weight”), the court need only address

that issue.

II. Medical Source Opinions.

Claimant challenges the weight the ALJ afforded to the

opinions of her primary care physician, Dr. Michael Kaploe, a

physician at Dartmouth-Hitchcock Medical Center, in Lebanon, New

Hampshire. Specifically, claimant asserts that the ALJ

8 improperly discounted Dr. Kaploe’s opinions based upon

unsupported speculation that he was a biased and unreliable

source. She also says the ALJ failed to properly consider

substantial evidence that was introduced into the record after

Dr. Hugh Fairley (the non-examining state agency physician)

conducted his review.

Turning first to claimant’s argument that the ALJ

improperly speculated about potential (though entirely

undocumented) biases on the part of Dr. Kaploe, her point is

well taken. The ALJ seems to have taken to including in his

written decisions boilerplate language aimed at routinely

undermining the credibility of primary care physicians. Here,

that language appears as follows:

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.

9 Admin. Rec. at 24. This court has previously addressed that

(and similar) language. Such language is, of course, decidedly

unhelpful. Absent evidence that a treating source’s opinion is

an “advocacy opinion,” language of that sort does nothing to

support the ALJ’s decision and, instead, merely distracts from

the actual issues (indeed, such language might be taken as

evincing a general predisposition to find “advocacy” in all

treating physicians’ opinions simply because they are from

treating physicians). See generally Meldrem v. Colvin, No. 16-

CV-156-JL,

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

(noting that the court found “troubling” the ALJ’s “unsupported

speculation as to [the] physician’s motives”); Sunshine v.

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

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

Jan 29, 2018) (finding similar comments about a physician’s

motives “unhelpful”); Cross v. Colvin, No. 15-CV-331-PB,

, at *7 (D.N.H. Apr. 4, 2016) (noting that the “ALJ’s

expansive view of ‘advocacy opinions’ would seem to cover any

opinion from a claimant’s treating physician that is favorable

to the claimant. That is bad enough, but when coupled with the

concept of deference to opinions from medical sources who

understand the SSA’s regulations, see

(c)(6), the ALJ’s approach turns the SSA’s guidance on

evaluating medical opinions on its head.”). Here, there is no

evidence that Dr. Kaploe somehow modified or exaggerated his

10 professional medical opinions in order to assist claimant in

obtaining SSI and/or DIB benefits to which she was not otherwise

entitled. Indeed, his diagnoses and opinions are entirely

consistent throughout the record.

For example, in January of 2014, Dr. Kaploe completed a

Mental Residual Functional Capacity Questionnaire, in which he

opined that claimant was “unable to meet competitive standards”

in the following categories: maintain regular attendance and be

punctual; complete a normal workday and workweek without

interruptions from psychologically based symptoms; and deal with

normal stress. Admin. Rec. at 741. The ALJ gave those opinions

“little weight,” reasoning that Dr. Kaploe is not a specialist

in the field and noting that he reported (on that same form)

that claimant has “no evidence of mental impairment at follow-up

examinations for diabetic management.” Id. at 24-25. All of

that is true. But, even a cursory review of Dr. Kaploe’s

opinion reveals that he based those opinions, not exclusively on

claimant’s psychological impairments, but rather on both the

physical and psychological impairments she suffered as a

consequence of her severe diabetes and diabetic neuropathy.

See, e.g., Id. at 742 (“Patient currently dealing with anxiety

surrounding poorly controlled diabetes mellitus type I and

financial concerns regarding her care and that of child and

11 grandchild. Patient having difficulty with complications

related to diabetes and difficulty maintaining regular

employment as a result of illness.”). To be sure, Dr. Kaploe’s

opinions are of the sort that are more typically found in a

“Medical Source Statement of Ability to Do Work-Related

Activities (Physical),” but there is no indication he was asked

to complete such a form. The important point is this: that Dr.

Kaploe expressed his opinions about claimant’s ability to

perform work-related activities on arguably the wrong form is

not a basis to discount those opinions.

Finally, says claimant, even if the ALJ’s speculative

musings about Dr. Kaploe’s potential biases and his arguable

misreading of the import of Dr. Kaploe’s opinions, are not,

standing alone, enough to warrant remand, the ALJ’s improper

handling of additional treatment notes (added to the record

after Dr. Hugh Fairley, the non-examining state agency

physician, issued his opinion) does warrant remand. Dr. Fairley

reviewed claimant’s medical records in July of 2014. He opined

that claimant could: lift and/or carry 20 pounds occasionally

and 10 pounds frequently; push and/or pull as much as she could

lift and/or carry; stand and/or walk for a total of four hours

in an eight-hour workday; and sit for about six hours in an

eight-hour workday. Admin. Rec. at 65-66. The ALJ afforded Dr.

12 Fairley’s opinion “great weight.” Id. at 25. But, says

claimant, substantial medical evidence that both undermined Dr.

Fairley’s opinions and supported her claimed disability was

introduced after Dr. Fairley rendered his opinion. Claimant’s

memorandum (document no. 7) at 8.

Although the ALJ acknowledged that new evidence, he

dismissed it in a single sentence, concluding that none of it

“document[ed] any meaningful change or deterioration in the

claimant’s presentation.” Admin. Rec. at 25. Claimant says

that conclusion is contradicted by the record. In particular,

claimant points to Dr. Kaploe’s letter of December, 2015 -

issued more than a year after Dr. Fairley conducted his review -

in which Dr. Kaploe stated:

Ms. Inserra’s diabetic neuropathy is extremely painful, particularly at her lower extremities. Ms. Inserra has considerable difficulty standing or walking for any considerable period of time. She is currently being managed for her diabetic neuropathy by pain specialists and is requiring significant doses of narcotic medication to be able to perform her activities of daily living. Ms. Inserra has been tried extensively on conservative therapy for her diabetic neuropathy and has not met with much success in this regard. Ms. Inserra’s diabetic neuropathy given the extent of her diabetes, is not likely to improve and thus must he medically managed with pain control medications provided by her pain specialist.

* * *

13 Ms. Inserra’s diabetes mellitus type I, along with her significant diabetic neuropathy as well as comorbid conditions of delayed gastric emptying (gastroparesis) make it extremely difficult for Ms. Inserra to perform work on a daily basis. Ms. Inserra has difficulty with her activities of daily living due to her diabetic neuropathy and is requiring narcotic medications for management of the pain associated with her diabetic neuropathy.

Admin. Rec. at 1104. At a minimum, those opinions seriously

call into question whether, at that point, claimant retained the

RFC to stand and walk for up to four hours each day of a

workweek (or whether she would even be able to maintain regular

attendance and complete a normal workday).

Moreover, Dr. Kaploe’s opinions are supported by the

medical evidence submitted after Dr. Fairley’s review. For

example, in September of 2014, physician’s assistant Kathleen

Keys at PainCare Centers, Merrimack, New Hampshire, noted that

claimant’s leg pain had been increasing over the past month,

often to the point of making it impossible for her to walk.

Admin. Rec. at 713. Ms. Keys also noted that claimant’s pain is

so severe that she is on the “max limits for medication,” and,

therefore, at risk for opioid dependence (claimant was taking

200 mg of MS Contin three times each day, along with 15 mg of

Roxicodone (another opioid painkiller) up to three times each

day). Id. at 700. Indeed, Ms. Keys opined that, “I consider

14 this patient to be at moderate risk of morbidity given the

severity of pain.” Id.

Also supporting Dr. Kaploe’s opinion is the fact that in

August of 2014, it was noted the claimant’s gait had become

unsteady, and in February of 2015, she fell down some stairs

because she lost her balance. Admin. Rec. at 688. In April,

2015, it was recommended that claimant establish care with a

counselor based on worsening anxiety related to her diabetic

neuropathy. Id. at 768. In August of that year, claimant had

eye surgery to correct a detached retina due to a vitreous

hemorrhage related to proliferative diabetic retinopathy. Id.

at 630, 633. And, in September of 2015, Dr. Kaploe reported

that “monofilament testing to feet bilateral with deficit noted

on testing to dorsal aspects of both feet,” id. at 759, and the

following month claimant reported that she has no sense of

hot/cold below the knee, id. at 643.1

1 Monofilament testing is a means by which to identify diabetes patients who are at risk for foot ulceration as a result of neuropathy. The test measures a patient’s response to pressure. According to one source, “Many prospective studies have confirmed that loss of pressure sensation using the 10-g monofilament is highly predictive of subsequent ulceration.” Comprehensive Foot Examination and Risk Assessment, A report of the Task Force of the Foot Care Interest Group of the American Diabetes Association, with endorsement by the American Association of Clinical Endocrinologists (available at http://care.diabetesjournals.org/content/31/8/1679).

15 In light of the foregoing, and for the reasons set

forth in claimant’s memoranda, the court is constrained to

conclude that the ALJ’s finding that the additional

treatment notes “do not document any meaningful change or

deterioration in the claimant’s presentation” is not

supported by substantial evidence. As claimant points out,

those additional treatment notes and records consisted of

nearly 500 pages of medical reports - a substantial portion

of which were entirely consistent with Dr. Kaploe’s

opinions. All of that, in turn, undermines the ALJ’s

decision to give the opinion of Dr. Kaploe - claimant’s

primary treating source - less than controlling weight.

See

(c)(2). See also Social Security

Ruling, Policy Interpretation Ruling Titles II and XVI:

Giving Controlling Weight to Treating Source Medical

Opinions, SSR 96-2p,

(July 2, 1996).

Conclusion

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

decision of the Acting Commissioner (document no. 7) is granted

to the extent claimant seeks a remand for further proceedings.

The Acting Commissioner’s motion to affirm her decision

(document no. 11) is denied.

16 Pursuant to sentence four of

(g), the

decision of the ALJ dated February 25, 2016, 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

February 21, 2018

cc: Karen B. Fitzmaurice, Esq. Penelope E. Gronbeck, Esq. Terry L. Ollila, AUSA

17