UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jose Antonio Quinones, Claimant Case No. 17-cv-359-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,

Jose Quinones, moves to reverse the Acting Commissioner’s

decision denying his application for Disability Insurance

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

, and Supplemental Security Income Benefits under

Title XVI of the Act,

(c). 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 February of 2015, claimant filed applications for

Disability Insurance Benefits (“DIB”), and Supplemental Security Income, alleging that he was disabled and had been unable to

work since February 1, 2014. 1 Those applications were denied on

July 9, 2015, and claimant requested a hearing before an

Administrative Law Judge (“ALJ”).

On April 11, 2016, claimant, 2 his attorney, Adriana Blume,

the claimant’s case manager, and an impartial vocational expert

appeared before an ALJ, who considered claimant’s application de

novo. On August 18, 2016, the ALJ issued his written decision,

concluding that claimant was not disabled, as that term is

defined in the Act, through the date of his decision. Claimant

then requested review by the Appeals Council. The Appeals

Council denied claimant’s request for review. 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.

1 The claimant filed a prior application on September 17, 2013, which was initially denied on January 22, 2014. On February 10, 2015, claimant withdrew his request for a hearing on that application.

2 Quinones had the assistance of a Spanish-English language interpreter, who participated in the hearing telephonically. See Admin. Rec. at 271-272.

2 Claimant then filed a “Motion to Reverse Decision of the

Commissioner” (document no. 8). 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. 13), 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).

This court’s review of the ALJ’s decision is, therefore,

both limited and deferential. The court is not empowered to

consider claimant’s application de novo, nor may it undertake an

independent assessment of whether she is disabled under the Act.

Rather, the court’s inquiry is “limited to determining whether

the ALJ deployed the proper legal standards and found facts upon

the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999). Provided the ALJ’s findings are properly

supported by substantial evidence, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. Such is the nature of

judicial review of disability benefit determinations. See,

e.g., Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988); Rodriguez v. Secretary of Health &

Human Services,

(1st Cir. 1981).

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 his impairment prevents him from performing his

former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

he can perform, in light of his age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

5 Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he 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.

6 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 his alleged onset of disability, February 1, 2014. Admin

Rec. at 28. He next concluded that claimant suffers from the

following severe impairments: “anxiety and depression.” Admin.

Rec. at 28. However, 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 of the regulations.

.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to “perform a full range of work at

all exertional levels but with the following nonexertional

limitations: he can perform one to three step instructions; he

can carry out, concentrate and persist and pace during the

typical two-hour periods of an eight-hour workday and forty hour

work week and his [sic.] is limited to occasional contact with

the general public and co-workers.” Admin. Rec. at 32. In

light of those restrictions, and based on the testimony of the

7 vocational expert, the ALJ concluded that claimant was capable

of performing his past relevant work, as it did not require the

performance of work-related activities precluded by the

claimant’s RFC.

. Consequently, the ALJ concluded

that claimant was not “disabled,” as that term is defined in the

Act, through the date of his decision.

.

Discussion

Claimant challenges the ALJ’s decision, arguing that the

ALJ failed to properly weigh the medical expert opinion

evidence, and to adequately support the RFC determination and

decision.

I. Medical Opinion Evidence

Claimant takes the position that the ALJ failed to give

proper weight to the medical opinions of his treating providers

and the opinion of examining psychologist, Dr. Jessica Stern.

Had the ALJ properly weighted those opinions, claimant says, he

would have met the Mental Impairment listings at 12.04 for

affective disorders, or the ALJ would have imposed greater

functional limitations at step four that would preclude all

gainful work. Along those lines, claimant argues that the ALJ

improperly gave controlling weight to the opinion of the non-

8 examining state agency psychological consultant, Dr. Phillips,

whose opinion was based upon an incomplete record.

As a preliminary issue, the ALJ’s statement that claimant

“does not allege that [his] impairments are of listing level

severity” is plainly incorrect. Admin. Rec. at 30. Claimant

repeatedly made that argument before the ALJ. First, prior to

claimant’s hearing, claimant submitted a memorandum, requesting

an “on the record” decision that claimant met the listings at

12.04, and stating the basis for that request. See Admin. Rec.

at 367 – 379. Then, at the hearing, claimant’s counsel again

argued that claimant met the listings at 12.04 for affective

disorder. Admin. Rec. at 292.

Putting that aside, there are two main problems with the

ALJ’s treatment of the medical opinion evidence. The first is

that the ALJ relied on the one medical opinion in the record —

the opinion of the non-examining state agency consultant — that

is generally inconsistent with the five opinions submitted by

various members of claimant’s treatment team at the Greater

Nashua Mental Health Center (“GNMHC”). As the ALJ stated during

the hearing, the five opinions from GNMHC are all “fairly

consistent or fairly similar.” Admin. Rec. at 291-293. Without

exception, each relates that claimant could be expected to be

absent from work at least four days a month, and would have

9 difficulty on a sustained basis accepting instruction,

responding appropriately to criticism, and adapting to changes

in a work setting. 3 See Admin. Rec. at 654-657, 621-624; 617-

620; 469 – 475. Dr. Phillips, on the other hand, opined that

“claimant can tolerate the minimum social demands of simple-task

settings,” “can tolerate simple changes in routine,” and could

“persist at simple tasks over time under ordinary conditions.”

Admin. Rec. at 312.

The court need not decide whether the ALJ correctly weighed

the medical opinion evidence, however, because a different

problem presents itself: the ALJ placed “substantial weight” on

a non-treating physician opinion that was based on a partial

record, and incorrectly understood the date the physician’s

opinion was rendered.

Dr. Phillips’s opinion was complete on May 5, 2015, nearly

a year before the hearing on April 11, 2016. The ALJ noted it,

but indicated that Dr. Phillips had “reviewed the record

existing on July 9, 2015.” Admin. Rec. at 40 (emphasis added).

That misinterprets the record: those sections of the

3 Dr. Jessica Stern, the state agency psychologist who examined claimant on January 17, 2014, similarly opined that claimant would not be able to persist at simple tasks. Admin. Rec. at 882-885.

10 Consultative Examination signed by Dr. Phillips are dated May 5,

2015. The ALJ then stated: “additional treatment notes do not

document any meaningful change or deterioration in the

claimant’s presentation and these opinions remain consistent

with the evidence of record in its entirety.” Admin. Rec. at

40. He further stated, “there is nothing in the additional

medical reports to suggest that further limitations are

necessary.”

.

Because the ALJ erroneously thought that Dr. Phillips’s

report was rendered in July of 2015, rather than in May of 2015,

it is unclear whether the ALJ properly considered the entirety

of the relevant medical records – records dating back to May,

2015, rather than July, 2015 – in making his factual findings.

It is clear from the record, however, that Dr. Phillips reviewed

a limited record before issuing his opinion, and that he

reviewed no medical records post-dating March of 2015. See

Admin. Rec. at 308.

As this court has previously noted, “the fact that [Dr.

Phillips] did not review later medical records does not

necessarily preclude the ALJ from relying on his RFC

assessment.” Ferland v. Astrue, No. 11-CV-123-SM,

, at *4 (D.N.H. Oct. 31, 2011). However, “[i]t can

indeed be reversible error for an administrative law judge to

11 rely on an RFC opinion of a non-examining consultant when the

consultant has not examined the full medical record.” Strout v.

Astrue, Civil No. 08–181–B–W,

, at *8 (D. Me. Jan.

28, 2009) (citing Rose v. Shalala,

(1st Cir.

1994)). “[A]n ALJ may rely on such an opinion where the medical

evidence postdating the reviewer's assessment does not establish

any greater limitations, or where the medical reports of

claimant's treating providers are arguably consistent with, or

at least not ‘clearly inconsistent’ with, the reviewer's

assessment.” Ferland,

, at *4 (internal

citations omitted). “The burden is on the ALJ, however, to make

that determination and he must make it adequately clear.”

Giandomenico v. U.S. Soc. Sec. Admin., Acting Comm'r, No. 16-CV-

506-PB,

, at *4 (D.N.H. Nov. 15, 2017) (citing

Alcantara v. Astrue,

(1st Cir. 2007)

(ALJ erred in simply stating that “the record underwent no

material change” without explaining his analysis); Snead v.

Barnhart,

(8th Cir. 2004)) (additional

citations omitted).

Here, the ALJ’s finding that the claimant’s “additional

medical reports” do not “suggest that further limitations are

necessary” (admin rec. at 41) is unsupported by any analysis of

or citations to the medical record. And, that determination is

12 contradicted by the record evidence post-dating May, 2015, which

evidence suggests a deterioration in claimant’s mental status.

In response to claimant’s argument, the Acting Commissioner

points out that Dr. Phillips reviewed medical records in which

claimant self-reported auditory hallucinations and an elevated

suicide risk. See Def.’s Mem. in Support of Motion to Affirm at

6. Therefore, says the Acting Commissioner, Dr. Phillips’s

failure to review claimant’s later medical records concerning

those symptoms is of no moment, since Dr. Phillips took them

into account in rendering his opinion.

While the Acting Commissioner is correct that claimant did

continue to report auditory hallucinations and suicidal ideation

throughout 2015 and 2016, claimant’s medical records indicate

that those symptoms, particularly his suicidal ideation,

worsened. For example, those provider treatment notes reviewed

by Dr. Phillips concerning claimant’s suicidal ideation

generally note that claimant did not “endorse intent” to commit

suicide (admin. rec. at 789); or had “thoughts of not wanting to

be around,” but no suicidal intent (admin. rec. at 607). See

also Admin. Rec. at 610 (similar). However, by November, 2015,

claimant’s medical records indicate that his suicidal ideation

was “stick[ing] in his mind for long periods. About a couple

weeks ago, reportedly went as far as looking for a cable to hang

13 himself.” Admin. Rec. at 851. In December, 2015, Dr. Lockward,

one of claimant’s treating physicians, took the precautionary

step of limiting claimant’s prescription to a two-week supply,

after claimant stated he wanted to “overdos[e] on all his

medications.” Admin. Rec. at 855.

Claimant’s deterioration is further evidenced by claimant’s

physician treatment records in late 2015 and early 2016, which

indicate that claimant’s judgment was impaired, or increasingly

limited. See, e.g., Admin. Rec. at 859 (January 11, 2016);

Admin. Rec. at 834-835 (September 17, 2015). Claimant’s

treatment records post-May, 2015, further indicate that his

providers began to opine that he likely required inpatient

treatment. See Admin. Rec. at 834-835; Admin. Rec. at 855.

Finally, following Dr. Phillips’s review of the record,

claimant’s providers, who had previously assessed his prognosis

as “fair” (see, e.g., admin. rec. at 469), changed their

prognosis to “guarded to poor” (see, e.g., admin. rec. at 617;

admin. rec. at 654; admin. rec. at 865).

Given all the above, the ALJ’s determination that Dr.

Phillips’s opinion was based on a sufficiently complete record

is not supported by substantial evidence. As a result, Dr.

Phillips’s “opinion could not equate to substantial evidence and

the ALJ erred in adopting it in his RFC assessment.”

14 Giandomenico,

, at *6. Accordingly, the court is

constrained to reverse the ALJ’s decision, and remand this case

to the SSA for further consideration.

Conclusion

The court having determined that the ALJ erred in his

treatment of Dr. Phillips’s opinion, the court need not address

claimant’s additional arguments. For the foregoing reasons, as

well as those set forth in the claimant’s legal memorandum,

claimant’s motion to reverse the decision of the Commissioner

(document no. 8) is granted, and the Acting Commissioner’s

motion to affirm her decision (document no. 11) is denied. The

Clerk of the Court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 14, 2018

cc: Janine Gawryl, Esq. Terry L. Ollila, AUSA

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