UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Albert Joseph Sanford III

v. Civil No. 17-cv-246-JL Opinion No

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Albert Sanford moves to

reverse the Acting Commissioner’s decision to deny his

application 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

2 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. That statement, document no. 14, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Sanford initially applied for SSI in April of 2013. His

claim was denied on May 16 of that year, and his request for a

hearing was dismissed as untimely. Then, in December of 2013,

he filed the applications for DIB and SSI that resulted in the

unfavorable decision that he now appeals.

3 Sanford stopped working after he suffered a workplace

injury on February 6, 2011. Before that, he had worked as a

furniture moving truck driver, as a furniture mover, as a

delivery driver, as a warehouse worker, and as a material

handler. In his applications, he claimed that he was disabled

as a result of: (1) a back injury in the form of an annular

tear at S1-L5; (2) center to right buttocks pain; (3) various

mental conditions; (4) posttraumatic stress disorder, and (5)

mood disorders.

Sanford has been diagnosed with the following physical

impairments: gastroesophageal reflux disease, Bell’s Palsy, L5-

S1 disc desiccation, a left-knee meniscus tear, rule-out COPD,1

mastoiditis, a deteriorated herniated lumbosacral disc, severe

left-sided facet arthropathy at C2-C3 with associated

degenerative endplate edema associated with a left-side

uncovertebral spur, a cystic lesion on his pancreas, and an

umbilical hernia. For those impairments, his treatment has

consisted largely of medication and some physical therapy. His

1 COPD is an “[a]bbreviation for chronic obstructive pulmonary disease.” Stedman’s Medical Dictionary 439 (28th ed. 2006). “‘Rule-out’ in a medical record means that the disorder is suspected but not confirmed — i.e., there is evidence that the criteria for a diagnosis may be met, but more information is needed in order to rule it out.” Byes v. Astrue,

, 916 n.3 (8th Cir. 2012) (citing United States v. Grape,

, 593 n.2 (3d Cir. 2008)).

4 treatment has not included anything more invasive, such as

surgery.

The record includes assessments of Sanford’s physical

residual functional capacity (“RFC”)2 by: (1) Dr. Donovan

Albertson, a non-examining physician who co-signed several

workers’ compensation medical forms in February of 2011; (2) Dr.

Kenneth Polivy, a physician who examined Sanford in July of

2011; (3) Dr. Peter Loeser, a physician who performed a

consultative examination in March of 2014;3 (4) Dr. Jonathan

Jaffe, a non-examining state-agency consultant who reviewed

Sanford’s medical records and performed an RFC assessment in

March of 2014; (5) Benjamin Otis, a physical therapist who, upon

referral from Sanford’s primary care provider, Dr. Ruth James,

put Sanford through a battery of tests and wrote a Functional

Capacity Evaluation (“FCE”) in December of 2015; and (6) Dr.

James, who completed a Physical Impairment Medical Source

Statement in August of 2016.4 The RFC assessments that are

2 “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). 3 “A consultative examination is a physical or mental examination or test purchased for [a claimant] at [the SSA’s] request.”

& 416.919. 4 The record also includes several assessments of Sanford’s mental RFC, but because the court’s decision turns on the way the ALJ considered the opinions concerning Sanford’s physical RFC, there is no need to describe the assessments of his mental RFC. 5 relevant to this decision are those provided by Dr. Jaffe, Mr.

Otis, and Dr. James.

To prepare his RFC assessment, Dr. Jaffe reviewed the

results of Dr. Loeser’s consultative examination along with the

other available medical evidence.5 He determined that Sanford

could: occasionally lift and/or carry 20 pounds, frequently

lift and/or carry 10 pounds, stand and/or walk (with normal

breaks) for about six hours in an eight-hour workday, sit (with

normal breaks) for more than six hours on a sustained basis in

an eight-hour workday, and push and/or pull the same amount he

could lift and/or carry. Dr. Jaffe also found that Sanford was

limited to occasional performance of all seven postural

activities (climbing ramps and stairs; climbing ladders, ropes,

and scaffolds; balancing; stooping; kneeling; crouching; and

crawling).

To prepare his FCE, Mr. Otis subjected Sanford to several

hours of physical testing. Based upon the results, Mr. Otis

determined that Sanford was capable of occasional stair

climbing, ladder climbing, walking, and sitting, with occasional

defined as 6 to 33 percent of a workday, i.e., up to two hours

5 Dr. Loeser stated that Sanford had a “[n]ormal ability to sit and stand . . ., ambulate, and walk on toes and heals,” Tr. 530, but such a general statement is not all that useful for determining Sanford’s actual capacities for sitting, standing, and walking. 6 and forty minutes. See Administrative Transcript (hereinafter

“Tr.”) 1184-85. He elaborated:

Albert was significantly limited in the forward bending test, he was limited in the 8 minute walk test, complaining of back pain with bearing weight through his right leg, he was limited in the sitting test, tolerating only 17 minutes of sitting. He demonstrated functional weakness in his core, quickly demonstrating compensation with material handling of lighter weight. He demonstrated some limitation in stairs, ladder climbing and front carry due to his walking limitation.

Tr. 1182. Finally, Mr. Otis opined that “Albert has difficulty

tolerating sitting for greater than 15 minutes.” Tr. 1183.

Turning to Dr. James, her statement indicates that she had

been treating Sanford since June of 2011, and that he had been

diagnosed with a herniated lumbosacral disc and right flank

pain. She opined that Sanford’s experience of pain or other

symptoms would frequently “interfere with attention and

concentration needed to perform even simple work tasks,” Tr.

1221, but did not answer any further questions pertaining to

Sanford’s RFC. Instead, she wrote in the margin of the form

“see functional capacity testing,”

which, presumably, was a

reference to the FCE she had commissioned from Mr. Otis.

After Sanford’s applications were denied by the Social

Security Administration, he received a hearing before an

Administrative Law Judge (“ALJ”). At his hearing, Sanford

testified that he could not cook for himself, see Tr. 99, 105,

7 could not do his own dishes, see Tr. 105, 106, and shopped once

a month with the help of a friend, see Tr. 84. He also

testified that he could stand for about 10 minutes before

needing to sit down, and that he could sit for about 15 minutes

at a time. See Tr. 106-07. And, indeed, midway through his

hearing, Sanford asked the ALJ for permission to stand up. See

Tr. 98.

The ALJ took testimony from a vocational expert (“VE”). In

her first hypothetical question to the VE, the ALJ posited

an individual who can lift 20 pounds occasionally, 10 pounds frequently, can stand, walk, and sit six hours each per day [and] can occasionally climb stairs, ramps, ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl.

Tr. 123.6 The VE testified that such a person could not do

Sanford’s previous work, but could perform the jobs of cafeteria

attendant, parking-lot attendant, and laundry folder. Then the

ALJ asked the VE another hypothetical question that posited

several mental limitations in addition to the previously noted

physical limitations. The VE testified that a person with those

physical and mental limitations could perform the light-duty

6 The court will presume, favorably to the ALJ, that she intended to mirror the limitations in Dr. Jaffee’s RFC assessment, which were six hours of standing and/or walking and more than six hours of sitting, rather than six hours of standing, six hours of walking, and six hours of sitting, which is a plausible construction of the ALJ’s hypothetical but is also an RFC for which there does not appear to be any support from any medical expert. 8 unskilled jobs of office cleaner, price marker, and flower-care

worker.

After the hearing, the ALJ issued a decision in which she

began by stating:

The May 16, 2013, denial relative to the April 15, 2013, application is the final decision of the Commissioner of Social Security that, on that date, the claimant was not disabled. That decision is administratively final. There is no sufficient reason to reopen that decision.

Tr. 10. In the section of her decision in which she assessed

Sanford’s RFC, the ALJ noted that “[t]he claimant’s earliest

allowable onset date is May 17, 2013,” id. at 17, and then she

discussed medical records that were generated after that date.

The ALJ did, however, consider several medical opinions that had

been given before May 17, 2013.

In any event, the ALJ determined that Sanford had the

following severe physical impairments:

neck pain secondary to left-sided arthropathy at C2-C3 with associated degenerative endplate edema associated with the left side uncovertebral spur, as well as additional degenerative changes on the left at C6-C7 (MRI 5/12/15); low back pain secondary to L5-S1 disc desiccation with loss of height and water, as well as a small central disc protrusion with central annular tear not impinging the thecal sac (MRI 2/2011); left knee pain secondary to ligament and meniscal tears (x- rays 12/22/11); chromic pain syndrome.

Tr. 13. Her decision also includes the following assessment of

Sanford’s physical RFC:

9 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he could only occasionally climb, balance, stoop, kneel, crouch, or crawl.

Tr. 16.7 Based upon the testimony of the VE, the ALJ determined

that Sanford was able to perform the jobs of office cleaner,

price marker, and flower-care worker.

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 the ALJ correctly determined that Sanford was

not under a disability from May 17, 2013, through the date of

her decision, April 14, 2016.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI, an ALJ is

7 For reasons that are unclear, the ALJ did not include in her RFC assessment the limitations on standing, walking, and sitting that she posited in her hypothetical questions to the VE. 10 required to employ a five-step sequential evaluation 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.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

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.

11 Mandziej,

(citing Avery v. Sec’y of HHS,

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

(1st Cir. 1982)).

B. Sanford’s Claims

Sanford claims that the ALJ erred by: (1) incorrectly

finding that his earliest allowable onset date is May 17, 2013,

and, as a consequence, failing to consider evidence from before

that date; (2) improperly weighing various medical opinions when

assessing his physical RFC; (3) basing her assessment of his

mental RFC on her own interpretation of medical evidence rather

than the opinion of a medical expert; and (4) improperly

evaluating the testimony he gave regarding his symptoms and

limitations. Sanford’s second claim is persuasive, and

dispositive.

The key issue in the analysis that follows is the ALJ’s

assessment of Sanford’s capacity for standing, walking, and

sitting. As for the specific RFC assessment at issue, the court

notes that the RFC in the ALJ’s decision places no limitations

on Sanford’s capacities to perform those three activities.

However, the court will presume that the ALJ actually intended

to include the limitation she posited in her questions to the

VE, i.e., an ability to stand/walk for six hours a day and an

12 ability to sit for six hours a day.8 Having identified the RFC

assessment at issue, the court turns to the manner in which the

ALJ evaluated the opinion evidence in the context of her

assessment of Sanford’s physical RFC.

In determining Sanford’s RFC, the ALJ gave: (1) “less

weight” to Dr. Albertson’s opinions; (2) “great weight” to Dr.

Jaffe’s opinions; (3) “less weight” to Mr. Otis’s opinions; and

(4) “less weight” to Dr. James’s opinions.9 Sanford claims that

the ALJ erred in the way in which she evaluated the opinions of

Dr. Albertson, Mr. Otis, and Dr. James. As to the opinions of

Mr. Otis and Dr. James, the court agrees.

The ALJ gave four reasons for discounting Mr. Otis’s

opinions that Sanford was capable of only occasional walking and

sitting and could tolerate no more than 15 minutes of continuous

sitting. Those reasons are: (1) the fact that Mr. Otis was not

an acceptable medical source; (2) inconsistency between the

limitations that Mr. Otis identified and the evidence that

resulted from his testing; (3) inconsistency between those

limitations and Sanford’s treatment history; and (4)

8 While that presumption may seem inappropriately favorable to the ALJ, it does not prejudice Sanford, because the ALJ based her decision on testimony from the VE elicited in response to hypothetical questions that incorporated the six-hour limitation(s).

9 The ALJ also gave “some weight” to Dr. Polivy’s opinions and “great weight” to Dr. Loeser’s opinions. 13 inconsistency between those limitations and Sanford’s reported

activities of daily living.

Mr. Otis is plainly not an acceptable medical source, see

(a) & 416.902(a). While that precludes his

opinions from receiving controlling weight, it does not merit

their summary dismissal. Rather, it obligated the ALJ to

evaluate them pursuant to

(f)(1) &

416.927(f)(1). Those regulations, in turn, required the ALJ to

“consider [Mr. Otis’s] opinions using the same factors as listed

in paragraph (c)(1) through (c)(6) in . . . section[s 404.1527

and 416.927].” The ALJ focused on two of those factors,

supportability and consistency with the record as a whole.10

While the ALJ’s second reason for discounting Mr. Otis’s

opinions is phrased in terms of inconsistency between those

opinions and the results of his testing, that reason is better

understood as a finding that Mr. Otis’s opinions were not

supported by relevant evidence. See

(c)(3)

& 416.927(c)(3). However, the Acting Commissioner “concedes

that the ALJ’s decision is not entirely clear on this point,”

Resp’t’s Mem. of Law (doc. no. 13-1) 12, and does not defend the

10The other factors are: (1) whether the source examined the claimant; (2) the extent of the source’s treatment relationship with the claimant; (3) the source’s area(s) of specialization; and (4) other factors. See

(c)(1)-(2), (5)-(6) & 416.927(c)(1)-(2), (5)-(6). 14 ALJ’s reliance on the supportability factor. That leaves the

ALJ’s reliance upon the inconsistencies between Mr. Otis’s

opinions and two aspects of the record as a whole, see

(c)(4) & 416.927(c)(4), i.e., Sanford’s treatment

history and his activities of daily living.

Turning to the former, in the section of her decision in

which she evaluated Mr. Otis’s opinions, the ALJ stated: “I

find that Mr. Otis’ proffered limitations are inconsistent with

the claimant’s history of conservative and/or effective

treatment for his physical impairments.” Tr. 25. Sanford

argues that the ALJ’s finding is not supported by substantial

evidence because she erroneously failed to consider medical

records from February of 2011 through May of 2013. But, there

is an antecedent problem with the ALJ’s analysis on this point.

She does not explain how the nature or effectiveness of the

treatment that Sanford received has any bearing on assessing the

validity of Mr. Otis’s opinions, which were based upon the

results of testing that he had conducted himself. Thus, the

“inconsistency” the ALJ identified between Mr. Otis’s opinions

and Sanford’s course of treatment results from what is

essentially a comparison of apples and oranges. In short,

Sanford’s treatment history does not, as a logical matter,

provide any basis for discounting Mr. Otis’s opinions.

15 That leaves the ALJ’s fourth reason for discounting Mr.

Otis’s opinions, their inconsistency “with the claimant’s

reported activities of daily living, such as cooking, cleaning,

shopping, walking, and attending his appointments.” Tr. 25.

Again, Sanford argues that the ALJ’s finding is not supported by

substantial evidence. The court agrees.

As a preliminary matter, the ALJ does not support the

finding quoted above with any citations to the record. Assuming

that it is permissible for the Acting Commissioner to fill that

gap, but see Hunt v. Colvin, No. 16-cv-159-LM,

,

at *9 (D.N.H. Dec. 5, 2016) (“it is not for the Acting

Commissioner to defend the ALJ’s decision with rationales that

the ALJ did not articulate”) (citations omitted), the Acting

Commissioner cites Sanford’s February 2014 Function Report as

the source of reports of daily activities that are inconsistent

with Mr. Otis’s opinions.

With respect to cooking, Sanford reported that he prepared

“meals that require minimal preparation,” Tr. 360, that he “no

longer [made] stir frys due to excessive need for prep, dicing

and standing,”

(emphasis added), and that he received help

from friends with cooking, see Tr. 359. With respect to

cleaning, he reported that he performed some house and yard

work, with assistance, see Tr. 359, 360, but also listed, as

something that he could no longer do, “clean the house,” Tr.

16 359. With respect to shopping, he reported that he shopped for

groceries and household supplies and went to Market Basket once

a month. See Tr. 362. But, in response to a question about how

often he shopped and long his shopping took to complete, he

stated: “not long, if [he] goes alone [he] can only get a few

items due to inability to carry groceries home and if supported

other person does most of shopping,” Tr. 361. With respect to

walking, Sanford listed “walking” as one of the ways he traveled

when he went out, see Tr. 361, but he did not indicate how far

or how long he was able to walk. And, when asked to describe

any changes in his hobbies as a result of his condition, he

stated: “use[d] to enjoy sports . . . but chronic pain makes

this impossible [and] [h]iking is no longer accessible either,”

Tr. 362. With regard to attending his appointments, Sanford

listed, as one of the places he goes on a regular basis, “SHMC

[Seacoast Mental Health Center] psych appointments,” Tr. 362,

but he said nothing about the frequency of those appointments.

While it is up to the ALJ to weigh the evidence in the

record and to draw inferences from that evidence, see Irlanda

Ortiz,

, Sanford’s Function Report does not

provide evidence that a reasonable mind could accept as adequate

to support a conclusion that Sanford’s self-reported abilities

to cook, clean, shop, walk, and attend appointments is

inconsistent with Mr. Otis’s opinions that Sanford could only

17 occasionally walk and sit and could only sit for 15 minutes at a

time.

Indeed, neither the ALJ nor the Acting Commissioner has

even attempted to identify any specific inconsistency between

the modest functional capacities that Sanford claimed in his

Function Report and Mr. Otis’s opinions. And, if anything, the

Function Report, which documents a limited capacity for standing

and walking, appears to be relatively consistent with Mr. Otis’s

opinions. Thus, this case seems to have much in common with

Johnson v. Astrue, in which the First Circuit determined that a

claimant’s ability to do “light housework, meal preparation, and

driving short distances” was “not necessarily inconsistent with

Dr. Ali’s opinion that [the] claimant could sit for four hours

per eight-hour day and could walk and stand for one hour each

during the same time period,”

(1st Cir. 2009)

(per curiam). Here, Sanford’s self-reported abilities to

prepare meals that required little preparation, perform

housework with assistance, shop with assistance on a monthly

basis, walk for an unspecified amount of time, and attend an

unspecified number of appointments are not necessarily

inconsistent with Mr. Otis’s opinion that Sanford could walk or

sit for no more than one third of a workday and could not sit

for more than 15 minutes at a time. In sum, the ALJ’s decision

18 to discount Mr. Otis’s opinions is not supported by substantial

evidence.

The same holds true for the ALJ’s decision to discount Dr.

James’s opinions. Unlike Mr. Otis, Dr. James is both an

acceptable medical source, see

(a) &

416.902(a), and a treating source, see

(a)(2) & 416.927(a)(2). Thus, her opinions are entitled

to controlling weight if they “are well-supported by medically

acceptable clinical and laboratory diagnostic techniques and

[are] not inconsistent with the other substantial evidence in

[Sanford’s] case record,”

(c)(2) &

416.927(c)(2). Moreover, in light of Dr. James’s status as a

treating source, the ALJ was obligated to give good reasons for

giving her opinions less weight. See

To be “good,” a

reason must be “both specific . . . and supportable.” Vorce v.

Berryhill, No. 17-cv-224-PB,

, at *6 (D.N.H. Aug.

14, 2018) (quoting Jenness v. Colvin, No. 15-cv-005-LM,

, at *6 (D.N.H. Aug. 27, 2015)). To be supportable, a

reason must embody “a rationale that could be accepted by a

reasonable mind.” Stafford v. Berryhill, No. 17-cv-345-LM,

, at *3 (D.N.H. June 18, 2018) (quoting Widland v.

Astrue, No. 11-cv-371-JL,

, at *9 (D.N.H. Apr.

16, 2012)).

19 In her decision, the ALJ evaluated both Dr. James’s opinion

that Sanford’s symptoms would frequently interfere with his

ability to pay attention and concentrate and her opinion on

Sanford’s capacities for standing, walking, and sitting, which

she drew from Mr. Otis’s FCE. As for the latter, the ALJ gave

that opinion “less weight” for the same reasons she gave less

weight to Mr. Otis’s opinions. But if the reasons the ALJ gave

are insufficient to support her decision to discount Mr. Otis’s

opinions, they are not good reasons to discount the opinion of a

treating source such as Dr. James.

Moreover, while the ALJ did not conduct a controlling-

weight analysis, it is difficult to see how Dr. James’s opinions

are not entitled to controlling weight. They are supported by

Mr. Otis’s FCE testing, and they do not appear to be

inconsistent with any other substantial evidence in the record.

However, the court will leave the question of controlling weight

to be resolved on remand. At this point, it is sufficient to

say that the ALJ did not give good reasons for discounting Dr.

James’s opinions.

Of course, the ALJ’s mishandling of the opinions of Mr.

Otis and Dr. James with regard to Sanford’s capacity for walking

and sitting would be essentially moot if there were substantial

evidence to support the ALJ’s determination that Sanford could

20 “stand, walk, and sit for six hours each per day,” Tr. 123.

There is not.

For the standing/walking/sitting limitation in Sanford’s

RFC, the ALJ relied on the RFC assessment authored by Dr. Jaffe.

“The opinions of state agency consultant physicians . . . must

be supported by the record to provide substantial evidence for

an ALJ’s findings.” Ledoux v. Acting Comm’r, Soc.

Sec. Admin., No. 17-cv-707-JD,

, at *4 (D.N.H.

June 12, 2018) (citing Social Security Ruling 96-6p,

, at *2 (S.S.A. July 2, 1996)). But “[i]f the state

agency consultant reviewed only part of the record, the opinion

cannot provide substantial evidence to support [and] ALJ’s

residual functional capacity assessment if later evidence

supports the claimant’s limitations.”

(citing McGowen v.

Colvin, No. 15-cv-329-JD,

, at *6 (D.N.H. Mar.

15, 2016); Avery v. Acting Comm’r, Soc. Sec. Admin., No. 17-cv-

443-JD,

, at *4 (D.N.H. May 24, 2018)).11 Here,

11Stated another way, “[a]n ALJ may rely on an RFC opinion of a non-examining consultant when the consultant has not examined the full medical record 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.” Levasseur v. Berryhill, No. 16-cv-431-JL,

, at *3 (D.N.H. Mar. 20, 2018) (citing Strout v. Astrue, Civil No. 08–181–B–W,

, at *8–9 (D. Me. Jan. 28, 2009; Rose v. Shalala,

(1st Cir. 1994); Torres v. 21 later evidence, in the form of Mr. Otis’s test results, supports

limitations greater than those included in Dr. Jaffe’s RFC

assessment. Specifically, Mr. Otis’s testing supported a

determination that Sanford could perform two hours and forty

minutes per day of walking and the same amount of sitting,

rather than the six hours each that Dr. Jaffe indicated in his

opinion. And Mr. Otis’s testing supported a determination that

Sanford could sit for only 15 minutes at a time, rather than “on

a sustained basis,” Tr. 150, 162, as Dr. Jaffe had found.

Accordingly, Dr. Jaffe’s opinion cannot stand as substantial

evidence supporting the standing/walking/sitting component of

the ALJ’s RFC.

Time will tell whether or not Sanford can carry his burden

of proving that he is disabled and, as a result, entitled to DIB

and SSI. However, because the RFC underpinning the ALJ’s

decision in this case is not supported by substantial evidence,

remand is required.

IV. Conclusion

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

an order affirming her decision12 is denied, and Sanford’s motion

Comm’r of Soc. Sec., Civil No. 04–2309 (DRD/GAG),

, at *1 (D.P.R. Sept. 6, 2005)). 12 Document no. 13.

22 to reverse that decision13 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.

____________________________ Joseph N. Laplante United States District Judge

Dated: September 12, 2018

cc: D. Lance Tillinghast, Esq. Robert J. Rabuck, AUSA

13 Document no. 11. 23